SZLGH v Minister for Immigration
[2008] FMCA 187
•22 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGH | [2008] FMCA 187 |
| MIGRATION – Review of decision of refugee review Tribunal – whether jurisdictional error – whether provided procedural fairness – what constitutes “information” under s.424A – not part of Court’s function to engage in fact finding concerning the merits of the applicant's case – country information – no obligation on Tribunal to conduct investigations. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424, 424A, 425, 425A, 426, 426A, 427, 441A, 474 |
| Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73 |
| Applicant: | SZLGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2712 |
| Judgment of: | Orchiston FM |
| Hearing date: | |
| Date of last submission: | |
| Delivered at: | Sydney |
| Delivered on: | |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Ms L. Clegg |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on
[date]3 September 2007 is dismissed.
Orders Style
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2848[ ] 2712 of 2007
| SZLGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”)
signed on 10 August 2007[date]handed down on 6 March 2007and notified to the applicant by letter dated 10 August 2007[[date]which affirmed the decision of the delegate of the respondent Minister (“‘the delegate”) to refuse to grant a protection visa to the applicant.
Background
The applicant claims to be a national of Bangladesh who was aged 32 at the time of his protection visa application. He arrived in Australia on 22 January 2007 on a Bangladesh passport issued in his name.
The applicant lodged an application for a Protection (Class XA) visa on 27 February 2007 on the basis that he feared being arrested, tortured or killed by the Rapid Action Battalion (RAB) or other authorities if he returned to Bangladesh (Court Book (CB) 47).
On 26 April 2007, the delegate refused to grant the applicant’s protection visa (CB 45-49) on the basis that he was not a person to whom Australia owed protection obligations under the Refugees Convention (see Legislative framework).
On 26 April 2007[date] the applicant applied to the Tribunal for review of the delegate’s decision (CB51).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 8 May 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 50-53).
On 16 May 2007 the Tribunal sent a letter to the applicant inviting him to appear before it to give oral evidence and present arguments at a hearing on 13 June 2007 (CB 56-57).
The applicant’s claims (CB 94-95)
The applicant’s claims and evidence (CB 78-82)
protectionProtectionvisa application(CB 78-79)
The Tribunal summarised the applicant’s claims as follows:
The applicant claims he fears harm in his country because he was a member of the Chattra League, the student arm of the Awami League, when he was a student at the Omar Gani (MES) Degree Collegeat Chittagaong in 1994. There was a split on the committee between the President, Mohi Uddin, who the applicant supported, and the Secretary, Bathen, who took bribes from the BNP. During orientation in January 1995 a student was killed in crossfire between the group led by the President and the applicant, and the Bathen group who were assisted by the BNP and its student wing, Chattra Daal. The BNP leaders and Chattra Daal lodged a murder case against Chattra League leaders especially against the Mohi Uddin group. The applicant went into hiding from 1995 [to] 1999. He claims that there were charges laid against him, associated with the murder of the student, and he was wanted by the police and the RAB. Although the [Awami League] came to power in 1996, an application for withdrawal of the case against the applicant was refused. With the assistance of his father, the applicant went to Saudi Arabiain 1999 but he became illegal there and the authorities told him he had to leave by 30 December 2006. He came to Australia via Bangladesh in January 2007.
-:[insert either as narrative or dot point or a combination]In summary, the applicant told the Tribunal (CB 79-82) that:·he is a Chinese citizen (subsequently confirmed)·his parents, and older and younger brothers, live in Fujian province in China·he came to Australia in November 2005 at the age of 16·prior to coming to Australia he went to boarding school in China for four years·he came to Australia because his father was working at a different place and rarely returned home and that his mother was practising Falun Gong and that she was arrestedIn response to questioning from the Tribunal about the timing and circumstances of his mother’s arrest, given that the applicant had previously said that the arrest had occurred about the time he came to Australia in 2005 but at the Tribunal hearing he said that the event occurred in 1999, he said that:·his mother’s arrest was before he came to Australia but not right before·his mother was arrested and detained in 1999 for about 6 months·he could not remember any details about being questioned by the police because he was very young at the time (about 10 years old) and scared, but indicated that the family was questioned about 10 times about Falun Gong·he had not seen his mother practising Flan Gong and did not know whether she had actually practised Falun Gong·he had told police that to his knowledge, his mother did not practice Falun Gong·he was last questioned by police in 2000 and in 2001 before he went to boarding school in ChinaThe applicant also told the Tribunal that:·from November 2005 to August 2006 he studied English at a language school until his student visa was cancelled in August 2006 because he did not have an 80% attendance rateThe Tribunal asked the applicant various questions concerning his knowledge and practice of Falun Gong (CB 81)The applicant also told the Tribunal that:·he was worried that persons from his home town already sent back to China might say that he practised Falun Gong or had taken photos of him practising Falun Gong in Villawood·his mother’s practice of Falun Gong could also make him more of a target because if he returned he would practise with his mother and they would be arrested and detained.
The Tribunal’ss s findings and reasons
1.[Insert here summaryThe Tribunalin a 2 or afew paragraghs]
[Note submissions of first respondent are often good here so you can say:On 19 July 2007,the Tribunal handed down its decision
I accept that the first respondent has accurately summarised the Tribunal’s findings and reasons(CB 94-98). It found that the applicant’s account was not credible. Whilst it accepted that the applicant may have been involved in student politics, it was not satisfied that he had a political profile which made him of interest to the police or the RAB, as he claimed. The Tribunal was not satisfied that he went into hiding in 1995, given his assertion that he had completed his degree by 1997, nor that charges were in fact laid against him as he claimed.In regard to the documents provided by the applicant which were allegedly from Awami League leaders, the Tribunal was of the view that they were obtained to bolster the applicant’s claim. It was not satisfied that the authors had personal knowledge of the applicant’s activities as a student. The Tribunal was also not prepared to give any weight to a letter which had been provided by the applicant’s mother.
The Tribunal further considered that the applicant’s delay in leaving Bangladesh in 1999 to go to Saudi Arabia, supported its conclusion that the applicant was not of interest to the authorities. It also considered the fact that the applicant managed to obtain a new Bangladesh passport in September 2006, and that he returned to Bangladesh ‘via immigration’ in 2007, suggested he was of no concern to the authorities.
The Tribunal was of the view that the applicant had not been involved in politics in Bangladesh for 12 years and had lived outside of Bangladesh for 8 years. On this basis, it repeated its conclusion that the applicant was not of interest to the authorities and that he would not be detained, arrested or in any way mistreated if he were to return to Bangladesh.
The Tribunal also noted independent country information from which it concluded that the applicant would not be persecuted now or in the reasonably foreseeable future in Bangladesh upon his return.
For these reasons, the Tribunal affirmed the delegate’s decision that the applicant was not a person to whom Australia owed protection obligations.
as follows:
[insert].
For these reasons,Tthe Tribunal therefore found there was not a real chance the applicant would suffer serious harm offromhis own practice of Falun Gong or his mother’s practise[eg his statedor perceived practice of Falun Gong]. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if he were to return toChina[country]for reasons of [ eg being a Falun Gong practitioner, a member of a particular social group, or for any othercConvention reason, now or in the foreseeable future].
The present proceedings before this Court.
The applicant filed thean application in this Court on 14 September 2007[date]setting out[egtwo]grounds for review of the Tribunal’s decisionThe applicant filed the application in this Court on 3 September 2007 setting out seven grounds for review of the Tribunal’s decision..The applicant appeared in person before the Court on 29 January 2008 with the assistance of a Bengali interpreter. Ms Clegg of counsel appeared for the first respondent.
The applicant filed an amended application setting out [eg 4]no further documents pursuant to the made on 25 September 2007 which gave directions by consent to the further filing of documents by the parties.grounds for review of the Tribunal’s decision.applicant'sThe applicant[appeared in person/represented by ]before this Court on[date]14 December 2007with the assistance of a[egMandarin]interpreter.[egMs Johnson]appeared for the first respondent.
Grounds of application
The seven grounds of the application are:
i)the Tribunal denied procedural fairness and, in so doing, made a jurisdictional error and error of law
ii)the procedure required under the Migration Act or the Migration Regulations to be observed in connection with the making of the decision was not observed
iii)the Tribunal ignored the merits of the protective visa application. The Tribunal made its decision on the basis of unsupported country information
iv)the Tribunal made its decision without making an investigation of the persecution that I faced in my former country
v)the Tribunal failed to take relevant considerations into account in exercising its powers when dismissing applicant's review application
vi)the Tribunal is involved with jurisdictional error and it led the incorrect interpretation of the applicable law
vii)the Tribunal decision was unjust as it was made without taking in to the account of full gravity of the circumstances of the applicant's Review Application.
The grounds of the application are:
.[insert grounds].
That the second respondent, ie the Refugee Review Tribunal refused to take into account the fact the applicant was a real risk of persecution if return to his country of origin namely the Peoples Republic of China (PRC), owing to belonging to the particular social group of Falun Gong practitioners.
That the second respondent failed to effectively take into account his oral evidence given at the Tribunal and failed to take into account that his mother practises Falun Gong and that he is at risk of being detained because of his family’s actions and his own beliefs and practise, there is a real risk of persecution if the applicant is returned to China.
Ground 1
The first ground of the application is to the effect that the Tribunal did not fully understand the nature of his involvement with corrupt officials when he conducted business in China and that his life and freedom would be in great danger if he returned to ChinaThe first ground states that the Tribunal denied the applicant procedural fairness. In this regard, the applicant is not entitled to common law procedural fairness: s.422B(1) of the Act: (Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62).
It is important to note at the outset, that the applicant has not provided any particulars to explain how the Tribunal is said to have denied him procedural fairness under the Act. Further, no evidence by way of the transcript of the Tribunal proceedings has been put before the Court by the applicant on the point. The applicant also did not file any written submissions to elaborate on this or any other ground of review.
In considering the general question of procedural fairness, the following observation of the High Court in SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63, 231 ALR 592, at [26], is relevant in this regard:
It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.
In this regard, ss.425 and 424A set out the key procedural fairness obligations under Part 7 Division 4 of the Act.
Under s 425(1), the Tribunal must identify to the applicant the critical or determinative issues upon which the decision is likely to turn: SZBEL at [35]-[36]. However, as observed in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [25]:
it is sufficient if the gravamen or substance of the issue or factor is brought to the [applicant’s] attention; or that the [applicant] is on notice of its ‘essential features’.
It is clear from the delegate's decision and from the face of the Tribunal's decision record in this case that the Tribunal identified the following issues to the applicant and gave him a sufficient opportunity to give evidence and make submissions on each of his claims concerning:
·his student activities, the conflicts that occurred at his college, and his being targeted for political reasons (CB 48, 84)
·his going into hiding from the police (CB 85)
·the circumstances in which he subsequently completed his degree (CB 85)
·charges being laid against him (CB 85)
·his obtaining a passport, and returning from Saudi Arabia to Bangladesh (CB 86)
·an outstanding warrant for his arrest in Bangladesh (CB 87)
·his fears if he were to return to Bangladesh (CB 48, 88).
I am satisfied therefore that the Tribunal complied with its statutory obligations pursuant to s.425(1) in accordance with the principles set out in SZBEL at [33]-[48] before it reached its conclusion in relation to the decision of the delegate under review.
In regard to the procedural fairness obligations on the Tribunal under s.424A, this provision requires the Tribunal to give an applicant clear particulars of any “information” that the Tribunal considers would be the reason, or part of the reason, for affirming the decision of the delegate that is under review; to draw the relevance of that information clearly to the attention of the applicant; and to give the applicant an opportunity to comment on or respond to the information, before any decision is made by the Tribunal.
It is well settled, however, that a proper construction of the word information in this context does not extend to the Tribunal’s subjective appraisals, thought processes or determinations on the evidence before it: SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [5] (and cases cited therein). This construction is consistent with the more general observations of the High Court in SZBEL at [48] that procedural fairness does not require the Tribunal to disclose its mental processes in reaching its decision:
…as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [30]:
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……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.
Most recently in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18], the High Court made it eminently clear that the Tribunal’s subjective thought processes, including its disbelief of the applicant’s evidence, do not constitute “information” for the purposes of s.424A:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
In the present case, the credibility of the applicant’s evidence was equally at the forefront of the Tribunal’s thought processes.
Furthermore, in regard to information provided by the applicant in his answers to questions put to him at the hearing, the Tribunal is not required to explain to him the express relevance to the review of every question it asks. Neither SZBEL nor the statutory requirements of s.424A(1)(b) impose such an obligation on the Tribunal.
I also consider that the following information falls within the statutory exceptions to s.424A(1) and hence would not be required to be put to the applicant for his response:
·information set out at CB 83 which the applicant gave during the process that led to the decision of the delegate that was under review by the Tribunal. The Tribunal was not obliged to put this information, (other than information that was provided orally by the applicant to the Department), to the applicant for his response: s.424A(3)(ba). I note that the delegate's decision (CB 45-49) does not disclose whether the applicant gave any such oral evidence before it.
·information which the applicant gave for the purpose of the application to the Tribunal for review of the delegate's decision. The Tribunal was not obliged to put this information to the applicant for his response: s.424A(3)(b). This includes the information in the Application for Review (CB 50-53), the Response to Hearing Invitation (CB 58-74), documents provided by the applicant at the hearing, (being two letters from Awami League leaders, a letter from the applicant's mother, and the applicant's own passport) (CB 84), and the oral evidence of the applicant at the Tribunal hearing (CB 84-88).
·country information (CB 88-94 and 99-273). The Tribunal is not obliged to put this information to the applicant for his response: s.424A(3)(a).
I am therefore satisfied that the Tribunal complied with its statutory obligations under s.424A and s.425 of the Act and accorded the applicant procedural fairness within the legislative framework of the natural justice hearing rule (and see further grounds 2 and 4 below).
Accordingly, Ground 1 of the application is rejected.
Ground 2
T
The applicant has not provided any particulars in support of this ground of review that the procedure required under the Act or the Migration Regulations 1994 (Cth) (“the Regulations”) in connection with the making of the decision was not observed.To the extent that this ground repeats those provisions of the Act already dealt with under ground 1 above, I rely on my reasoning therein in this context. Otherwise, I have considered whether there was any irregularity or defect in the issuing of the Tribunal letter of 16 May 2007 (CB 56-57) inviting the applicant to appear at a hearing before it. In this regard, I am satisfied that the Tribunal invitation:
·informed the applicant that it was unable to make a decision in his favour on the information before it, and invited him to attend a hearing in order to submit further evidence in support of his claims: s.426(1);
·provided the applicant with notice of the specified day, time and place at which the applicant was scheduled to appear (13 June 2007): s.425A(1);
·was sent to the applicant by post to the last address for service nominated by the applicant: s.441A(4)(c)(i);
·provided a period of notice to the applicant that complied with the prescribed period of 14 days: Regulation 4.35D of the Migration Regulations, and
·informed the applicant of the options available to the Tribunal if he failed to appear at the scheduled hearing: s.426A.
Taking each of these statutory requirements into account, I consider that the Tribunal invitation complied with the relevant provisions of Part 7 Division 4 of the Act and the Regulations regarding the content and service of the invitation.
Accordingly, Ground 2 of the application is rejected.
,,and For instanceIn this regard,,.....before it `[insert your findings on ground 1.]
[Useful conclusion:
Overall, I am satisfied that the Tribunal made clear and well reasoned findings on each of the applicant’s claims in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations.
I am satisfied that the Tribunal carefully considered whether the applicant was in fact a Falun Gong practitioner and hence a member of this particular social group. Merely because the Tribunal came to a contrary view to the applicant’s claim, does not establish jurisdictional error on the part of the Tribunal. So long as the Tribunal’s findings were open to it, on the evidence before it, no error of law can be demonstrated.
1.In reaching its conclusion, the Tribunal had before, the Department’s file relating to the applicant, which included the applicant’s protection visa application; a statement of claims in the form of a statutory declaration dated 23 April 2007; the delegate’s decision record; the Tribunal’s file containing further written submissions by the applicant’s authorised recipient in response to the delegate’s decision; relevant independent country information, as well as oral evidence and argument presented by the applicant.
1.I consider that the Tribunal’s reasons for finding that the applicant was not a genuine Falun Gong practitioner were carefully considered and articulated by it. (CB84-85). In this regard, I accept that the first respondent accurately summarises these reasons in its outline of submissions, as follows:
Specifically, the Tribunal
a)a)did not accept that the applicant was a genuine practitioner as he failed to refer to the core teaching of Falun Gong movement, Zhaun Falun, when listing important events in the history of Falun Gong: CB84.6:
a)did not consider it plausible that a genuine Falun Gong practitioner would not be able to speak about the fundamental principles of Falun Gong: CB 84.9:
a)did not accept that a genuine practitioner would not have made attempts to obtain and read a copy of Zhaun Falun, the primary scripture for the Falun Gong movement: CB 85.3:
a)did not accept that someone who was committed to Falun Gong, particularly someone who was in detention where an opportunity to practice was offered everyday, would ‘sometimes skip a whole week’ and not practice at all: CB 85.5:
a)did not accept that he had attended Falun Gong practice sessions in detention andaccordingly,did not accept that the applicant would have come to the adverse attention of the PRC authorities: CB 85.8:
a)on the basis of the applicant’s inconsistent, implausible and not credible evidence, did not accept that the applicant’s mother was ever a Falun Gong practitioner: CB 8603; and
a)for these reasons, the Tribunal concluded that there was not a real chance that the applicant would suffer serious harm as a result of his own practice of Falun Gong or his mother’s practise or perceived practice of Falun Gong. The Tribunal was not satisfied that the applicant had a well founded fear of persecution if he returned to China now or in the reasonably foreseeable future: CB 86.4”
1.It is evident from the above reasons, that the Tribunal rejected the applicant’s claims after considering all the evidence, including the independent evidence in reaching its conclusions concerning the applicant’s lack of credibility. It cannot therefore be said that the Tribunal refused to take into account the matters set out in ground 1 (namely, the applicant’s claims that he belonged to a particular social group of Falun Gong practitioners and was thereby at risk of persecution if he were to return to China), in reaching its conclusions.
1.I am satisfied therefore that the Tribunal’s assessment of the evidence, including its adverse findings as to credibility, were open to it on the evidence and that it performed the task required of it in accordance with law. The Tribunal’s conclusions that the applicant was not a witness of credit were findings of fact par excellence:;
“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.” (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
Equally, in the present case the Tribunal dealt with the implausibility of certain of the applicant’s claims referred to above.
1.I am satisfied that the applicant is, in effect, inviting the Court to undertake a review of the merits of the Tribunal decision. It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: MIEA v Wu Shan Liang (1996) 185 CLR 259 at[272];NAHI v MIMIA [2004] FCAFC at [10].
1.Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137]
1.Simply put, this Court cannot review the merits of the Tribunal’s decision: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558]:
1.
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.[INSERTQuoteno 1 from Fact findinghere]“….it is not open to the applicant to seek a review of the merits of the decision of the RRT. Parliament has determined that ordinarily the RRT is to be the final arbiter on the merits for applications for protection visas. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR at 35-36:
‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in doing so the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’”
Overall, I am satisfied that the Tribunal made clear and well reasoned findings on each integer of the applicant’s claims in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations.
Section 424A of the Act
Section424A(1) of the Actrequires the Tribunal to give an applicant “particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”and invitingthe applicant to comment on any adverse finding which may be made by it.Whilst the applicant has not directly raised this issue, the Court has nonetheless considered whether there has been any breach of this statutory requirement in the present circumstances where no letter pursuant to s.424A(1) of the Act was sent to the applicant.Ms Johnson submits that there has beenno breach in regard to any discrete obligation arising pursuant to s.424A in this case. She submits that there was no “information” that enlivened the Tribunal’s obligation under the section on the basis that the evidence given by the applicant on these matters falls within the statutory exception under s.424A(3)(b), being information which the applicant “gave for the purposes of the application”.In any event,I do not consider that a proper construction of the word “information” ins.424A(1)(a),extends to the Tribunal’s failure to believe the applicant’s evidence on these matters based on its finding of inherent inconsistencies therein. The observation by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] is particularly apposite on this point:If the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.For these reasons,I am satisfied that there has been no breach of s.424A of the Act in this case.Accordingly, Ground 1.of the applicationis rejected.
Ground 2 3
The applicant has raised the following two limbs of review under ground 3:
·the Tribunal ignored the merits of the protective visa application
·the Tribunal made its decision on the basis of unsupported country information
[A fair reading of the Tribunal’s decision discloses that the Tribunal carefully considered.T
The applicant has not provided any particulars in support of either limb of review.In regard to the first limb, the procedural fairness requirements in Part 7 Division 4 deal only with the process of decision-making, not the merits of the decision. As relevantly stated by the High Court in SZBEL at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
This statement reflects the well-established case law that it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
Far from ignoring the merits of the application, I am satisfied that the Tribunal made clear and well-reasoned findings on each of the applicant’s claims. I further consider that these findings were open to it on all the evidence and material before it, including its
ATribunal has statutory procedural fairness obligations under s.424A and s.425(1) inobtaining informationbefore making its decision.]the applicant’s oral evidence in relation to his mother’s claimed practice of Falun Gong (CB 80). Merely because the Tribunal did not believe the applicant on these matters and hence did not accept that the applicant’s mother was ever a Falun Gong practitioner, nor that she was ever arrested by the authorities, nor that the applicant himself had ever been questioned by the police in regard to his mother’s alleged Falun Gong practices (CB 85- 86), given the implausibility of these claims, does not establish jurisdictional error on its paadverse conclusions as to the credibility of the applicant, in particular that it "does not find the applicant's account of his experiences as a student participant in the [Chattra League] to be credible." (CB 95). This conclusion was a finding of fact par excellence, and was not open to review by this Court: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]). As the Full Federal Court observed in NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167 at [9]:The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration &Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
Further the weight the Tribunal accords the material before it is ultimately a factual matter for it. As observed by the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
I therefore consider that the first limb of ground 3 does not give rise to jurisdictional error.
In regard to the second limb that the Tribunal made its decision on the basis of unsupported country information, the Tribunal provided a summary of the country information to which it referred in its decision (at CB 88-94), and attached the full text of this quite considerable country information (at CB 99-273).
At its highest, the applicant’s complaint could only be that the country information relied upon by the Tribunal was wrong in whole or part. However, it is well-settled that the Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: (NAHI at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]).
Furthermore, what weight the Tribunal gave to any particular country information is ultimately a factual matter for it: (NBKT at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee at [27]).
Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: Abebe at [137]. As summed up by the Full Federal Court in NAHI:
By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that … at [11].
The very function of the Tribunal was to assess the applicants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the applicants’ country of origin …at [12].
It was clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal … at [13].
I consider that, in the present case, the Tribunal properly considered all the country information before it and the conclusions that it reached were open to it on this material. I detect no error jurisdictional in regard to this second limb of ground 3.
Accordingly, for the reasons stated above, Ground 3 of the application is not made out.
Ground 4
Ground 4 of the application states that the Tribunal made its decision without making an investigation of the persecution that the applicant faced in his former country.
The applicant has not provided particulars of this ground, nor has he placed the transcript of the Tribunal proceedings before the Court upon which the Court may have been in a better position to understand exactly what inquiries the applicant claims the Tribunal has been deficient in embarking upon.
The Tribunal has the power under s.424 of the Act to "get any information that it considers relevant". This provision, however, is permissive not prescriptive. As recognised by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous AffairsvVSAF [2005] FCAFC 73 at [20]:
If his Honour meant that the Tribunal should have sought information from other sources available to it under s.424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
An applicant may also request the Tribunal to call one or more persons as a witness to give oral evidence under s.426(2) of the Act. However, whilst the Tribunal must have regard to the applicant’s wishes, it has no statutory obligation to obtain any evidence (orally or otherwise) from that person or persons: s.426(3). As stated by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]:
…s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness …the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
In any event, in the present case the applicant stated that he did not wish to call anyone as a witness (as indicated by the applicant ticking the "No" box to questions 2c and 2d, concerning an applicant calling witnesses or bringing someone to the hearing, on the Response to Hearing Invitation form: CB 58).
The Tribunal also has the power to require the Secretary of the Department to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination: s427(1)(d). However, as stated by the Full Federal Court in WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 (29 August 2002) at [24]:
…it is clear that s.427(1)(d) does not impose any legal obligation on the Tribunal.
The Tribunal further has the power to summons a person in Australia to give evidence on oath or affirmation and/or to produce documents: ss.427(3),(4). Again, however, these are discretionary provisions and do not impose any duty on the Tribunal to do so.
Whilst the Tribunal may choose to exercise these investigative and information-gathering powers, it has no obligation to do so. It is well settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73].
Indeed, an applicant will have to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Having properly considered the evidence before it, the Tribunal in this case was thus under no obligation to conduct any further investigation before concluding that the applicant did not have a well-founded fear for a Convention reason.
Accordingly, Ground 4 of the application is rejected.
Ground 5
Ground 5 of the application states that the Tribunal failed to take relevant considerations into account in exercising its powers when dismissing the applicant's review application.
T
The applicant has not provided any particulars of the relevant considerations that he asserts the Tribunal has failed to take into account, nor has he put before the Court any evidence on this point by way of the transcript of the Tribunal proceedings.In the absence of any elaboration of this ground, I detect nothing in the Tribunal’s findings and reasons (CB 94-98) to indicate that it failed to take any relevant consideration into account. Otherwise, matters relevant to this ground have already been dealt with in the above grounds of application (in particular at ground 3) and I adopt my reasoning therein in this context. As stated above, I am satisfied that the conclusions reached by the Tribunal were open to it on all the evidence and material before it and that it performed the task required of it in accordance with law.
Accordingly, Ground 5 of the application is rejected.
Ground 6
Without the
Tprovision of particulars in support of this ground, it is impossible to know what incorrect interpretation of the applicable law the applicant is asserting that the Tribunal applied.In the absence of any elaboration of this ground, I consider that this ground does not raise any matter that has not already been considered in the above grounds of application (in particular at grounds 1 and 2) in which the Court has failed to detect any jurisdictional error that the Tribunal applied an incorrect interpretation of the applicable law.
Accordingly, Ground 6 of the application is not made out.
Ground 7
Ground 7 of the application states that the Tribunal decision was unjust as it was made without taking into account the full gravity of the circumstances of the applicant’s case.
T
The applicant has not provided any particulars in support of this ground of review, nor has the applicant put before the Court any evidence on the point by way of the transcript of the Tribunal proceedings. In the absence of any elaboration, I consider that this ground does not raise any matter that has not already been considered in the above grounds of application, (in particular at grounds 1, 3 and 5), in which the Court has failed to detect any jurisdictional error in the Tribunal’s consideration of the claims of the applicant.I consider that the face of the Tribunal's decision record demonstrates that it fully assessed the alleged gravity of the circumstances of the applicant's review application and that it closely considered all the evidence and material before it, including country information, before reaching its conclusion affirming the delegate’s decision.
Accordingly, Ground 7 of the application is rejected.
[insert findings on rest of grounds of application
Ground 1 of amended application [if filed]
[etc re rest of amended grounds if relevant
[Note: if any other issues/matters raised elsewhere eg in applicant’s affidavit, best /oral submissions to the Court, then put sub-heading eg applicant’s oral submission and deal with after the formal grounds above]
For thesereasons, Ground 2 of the application is rejected.For these reasons, gGround twround o2of the application must failis rejected. ]
The applicant’s submissions
Before this Court, the applicant submitted in regard to ground 1.:Because of the persecution, … due to my mother practice Falun Gong, my elder brother was involved at some degree, therefore he went to United Kingdom … and at the moment my mother tried to get her document organised to go to United Kingdom as well.The applicant declined to say anything further in regard to ground 2 or generally. In response to the submissions of the first respondent, he stated that:I am a vulnerable person. If I did return, I would be persecuted. Although there are some inconsistencies, that was because I was nervous before the hearing.:
Conclusion
The Court finds that
Tthe Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision.not affected by jurisdictional error and is therefore a privative clause decision.Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.The application before this Court is dismissed.
1.[Issues of costs to be canvassed].
I certify that the preceding twenty four seventy-seven (2477) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Samantha Wimalasuriya
Date: 22 February 2008
no particulars and no transcript provided by the applicant[where any matter of evidence of what was said at the Tribunal hearing is raised by the applicant]no particulars of ground 4 have been provided to explain how the Tribunal is said to have ignored, mischaracterized, or failed to address these important matters in the applicant’s claims. Further, no evidence by way of transcript of the Tribunal proceedings has been put before the Court by the applicant on the point.
Fact finding/credibility the preserve of the Tribunal aloneI am satisfied therefore that the Tribunal’s assessment of the evidence, including its adverse findings as to credibility, were open to it on the evidence and that it performed the task required of it in accordance with law. The Tribunal’s conclusions that the applicant was not a witness of credit were findings of fact par excellence:“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.” (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).I am satisfied that the applicant is, in effect, inviting the Court to undertake a review of the merits of the Tribunal decision. It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558]. Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137]Simply put, this Court cannot review the merits of the Tribunal’s decision: As observed by the Full Court in NAHI v MIMIA [2004] FCAFC at [10]: In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Fact finding/credibility the preserve of the Tribunal aloneI consider therefore that the assertion of future persecution in the applicant’s affidavit has no proper basis. I am satisfied that the Tribunal gave thorough consideration to whether the applicant had suffered persecution in the past and to whether he would be at risk of persecution in the future.In conclusion, I am satisfied that the Tribunal rejected the applicant’s claims after considering all the evidence, including the independent evidence, in reaching its conclusions concerning the applicant’s lack of credibility. The Tribunal’s conclusions that the applicant was not a witness of credit were findings of fact par excellence:“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.” (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).I am satisfied that the applicant is, in effect, inviting the Court to undertake a review of the merits of the Tribunal decision. It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law (Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24]). Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137]).Simply put, this Court cannot review the merits of the Tribunal’s decision, as observed by the Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558:…it is not open to the applicant to seek a review of the merits of the decision of the RRT. Parliament has determined that ordinarily the RRT is to be the final arbiter on the merits for applications for protection visas. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR at 35-36:The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in doing so the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
Fact finding/credibility the preserve of the Tribunal aloneAs stated in regard to ground [eg 1] above, the Tribunal’s conclusions that the applicant was not a witness of credit and did not consider the applicant’s claims concerning [eg his mother] to be plausible, were findings of fact par excellence and open to it on the evidence. It is not for this Court to review the merits of the Tribunal’s decision, nor is it the task of this Court to substitute an alternate finding on the merits of an applicant’s case. Again, as with ground 1, the applicant is effectively seeking to challenge the Tribunal’s factual findings and to invite the Court to undertake impermissible merits review.
Fact finding/credibility the preserve of the Tribunal alone/ weight
This ground simply seeks merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The weight given by the Tribunal to evidence is a matter for it: (Peko-Wallsend Ltd at 41 per Mason J; NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).
Independent or country informationI consider that this finding [based on the independent evidence] was open to the Tribunal for the reason it gave. The assessment of country information is a matter for the Tribunal and the Tribunal was not required to accept claims that were inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality: (NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at [8]; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). No error of law is thereby disclosed.
Independent or country informationthe Tribunal’s choice and assessment of such country information is a purely factual matter for it: (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]). Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]).
Weight What weight the Tribunal gave to [eg facts/any one of these articles], is ultimately a factual matter for it: (NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).
Procedural fairnessGround 2 of the amended application also asserts that the applicant was denied procedural fairness by the Tribunal by its reliance on the incorrect translation. The applicant is not, however, entitled to common law procedural fairness: s.422B. There is no evidence to establish this assertion, in particular, to demonstrate that the incorrectly translated version was the version in fact considered by the Tribunal. In any event, I accept the submission by the first respondent that it cannot be a breach of procedural fairness for the Tribunal to rely upon information that may later be shown to be incorrect, in the absence of any suggestion that the Tribunal knew or should have known that such information was incorrect.
Conclusion on Tribunal’s consideration of applicant’s claimsI am satisfied that a fair reading of the Tribunal’s decision demonstrates that the Tribunal carefully considered each of these claims and the evidence of the applicant. Indeed, far from ignoring the applicant’s claims, it is clear that these matters were critical to the Tribunal’s deliberations. …………It was therefore not satisfied that the applicant has a well founded fear of persecution for reasons of [eg his religion].
Conclusion on Tribunal’s consideration of applicant’s claimsOverall, I am satisfied that the Tribunal made clear and well reasoned findings on each of the applicant’s claims in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations.Conclusion on Tribunal’s consideration of applicant’s claimsIn conclusion, on all the evidence before the Tribunal, including the country evidence provided by the applicant himself, I consider that it cannot be said that the Tribunal ignored the matters set out in grounds [ ]3 in reaching its conclusions. I am satisfied that it was open to the Tribunal to reach the conclusions it did and that it performed the task required of it in accordance with the law. I am satisfied that no jurisdictional error is thereby disclosedAccordingly, Ground [ ] of the application is rejected.
section 424A of the ActWhere no s424A letter sent to applicantSection 424A(1) requires the Tribunal to give an applicant “particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”, to explain why that information is relevant to the review, and to invite the applicant to comment on any adverse finding which may be made by it. Ms Johnson submits that there is no breach in regard to any discrete obligation arising pursuant to s.424A in this case. She submits that there was no “information” that enlivened the Tribunal’s obligation under the section on the basis that the evidence given by the applicant on these matters falls within the statutory exception under s.424A(3)(b), being information which the applicant “gave for the purposes of the application”.I do not consider that a proper construction of the word “information” in this context extends to the Tribunal’s failure to believe the applicant’s evidence on these matters, based on its finding of inherent inconsistencies therein. The observation by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] is particularly apposite on this point:… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.I am satisfied therefore that there has been no breach of s.424A of the Act in this case.]
section 424A of the Act
I am satisfied that the Tribunal thereby clearly explained the relevance of this information to the review in a manner that the applicant could understand as required of it by s.424A(1)(b) of the Act. I am further satisfied that it set out clearly and with sufficient particularity, the information that was likely to lead to affirmation of the delegate’s decision: (Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [10]).
section 425(1) of the Act
The Court has also considered whether, the applicant was given the opportunity at the Tribunal hearing, pursuant to s.425(1) of the Act to give evidence and present arguments relating to “the issues in relation to the decision under review”, in particular, in light of the matters raised in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [33]-[48].In this regard, I am satisfied that the applicant would clearly have been put on notice from the delegate’s decision record that the credibility of his claims, (concerning in particular his involvement in, knowledge and the extent of his practice of Falun Gong; whether his profile would have been of any interest to the Chinese authorities; and whether he had the support of the Falun Gong Association in Australia (CB 46-47)), was in issue in determining his application for a protection visa. I am further satisfied that the applicant was equally put on notice by the delegate’s decision record that the credibility of his claims in relation to his mother’s involvement with Falun Gong, and her alleged detention and on-going checks by police, (CB 48-49), was in issue in determining his application.Whilst the applicant did not provide the Court with the transcript from the Tribunal’s hearing, it is apparent from its decision record that the Tribunal clearly identified to the applicant that his credibility on these issues was important in its determination of his claims. In this regard, the Tribunal put a number of matters to the applicant and asked him a number of questions about his own knowledge of, and his and his mother’s practice of Falun Gong (CB 80-82). It further put to the applicant a number of inconsistencies in his claims on these matters concerning the year in which his mother was arrested; the extent of time devoted by him to the practice of Falun Gong; and the number of Falun Gong exercises he had learnt: (see: Inconsistencies (CB 82).I am satisfied therefore that, on the basis of the material before the Court, that the applicant was given the opportunity to demonstrate his knowledge of Falun Gong and to address and respond to inconsistencies in the issues identified by the Tribunal in regard to the applicant’s claims. I accept that the applicant would have been clearly on notice that the credibility of his claims to be a Falun Gong practitioner and of his mother’s practice of Falun Gong, were determinative issues before the Tribunal. I accept the submissions by Ms Johnson on these matters.I further accept that the Tribunal gave the applicant a sufficient opportunity to give evidence, and to make submissions, about these determinative issues arising in relation to the review: (SZBEL at [44]). I am therefore satisfied that there has been no breach of s.425(1) of the Act in this case.
section 425(1) of the Act: procedural fairness
I am also satisfied that the Tribunal clearly identified as discussed above the determinative “issues arising in relation to the decision under review” and gave the applicant ample opportunity to give evidence and make submissions and to respond to the s.424A letter in relation to these issues before reaching its conclusions. In this regard, I consider that the Tribunal accorded the applicant procedural fairness as required of it pursuant to s.425(1) of the Act: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [33]-[48]. I accept the first respondent’s submission in this regard.No legitimate grounds of reviewI consider that the above matters raised by the applicant either do not disclose any legitimate grounds for review by this Court, or merely reiterate the applicant’s claims rejected by the Tribunal and over which this Court has previously found (at ground [ ] of the application) that no jurisdictional error is disclosed.Good approach when applicant sets out a long list of ‘issues’ in a claim that s 425 (1) was not complied withThe [insert number] matters relied upon by the applicant were at a very high level of specificity and hence quite different to the approach of the High Court in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [44]; [2006] HCA 63, 231 ALR 592, where the Court referred to the “determinative issues” arising in relation to the decision under review. This Court therefore has to consider whether the requirements of s 425(1) have been satisfied in relation to what can be identified as the “determinative issues” in this case, not necessarily every matter referred to in the application. CASESMinister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138
NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
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Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 ……Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 .Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, (2003)195 ALR 24 referred to
SZBYR v Minister for Immigration and Citizenship [2007] HCAVAF v Minister for Immigration and Multicultural and Indigenous Affairs [CITATION TO BE INSERTED] referred to
FUNCTUS OFFICIO [CKX]The relevant law applied by the second TribunalThe Tribunal's jurisdiction arises under s.411 of the Act if a valid application for review of an RRT-reviewable decision is made under s.412 of the Act. Section 411 sets out the various decisions that can be reviewed by the Tribunal, including a Protection (Class XA) visa. Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed time period. The prescribed time periods are set out in r.4.31 of the Migration Regulations 1994. Where the applicant is not in immigration detention, the application for review must be lodged at a registry of the Tribunal not later than 28 days after the day on which notice of the delegate's decision is received: s.412(1)(b) and r.4.31(2)(b). Thus, notification of the decision provides the reference point for the commencement of the limitation period provided for in s.412(1)(b) and prescribed by r.4.31(2)(b). There is no provision for an extension of time.Where the Tribunal has received a valid application for review of a RRT-reviewable decision and carried out its statutory duty to review the decision under s.414 of the Act, it is precluded from again considering the matter as the Tribunal has no jurisdiction to review a delegate's decision twice: Jayasinghe v MIEA (1997) 76 FCR 301, 145 ALR 532 and SZIIV v MIMA [2006] FMA 322.The second Tribunal’s findings and reasonsThe second Tribunal considered the applicant’s submissions in his letter of response, but did not accept that they provided any basis for accepting the application before it. The Tribunal noted that the applicant unsuccessfully sought judicial review of the Tribunal’s earlier decision in SZCKX v MIMA & Anor [2005] FMCA 1810; SZCKX v MIMA [2006] FCA 528; and SZCKX v MIMA & Anor [2006] HCATrans 707. In conclusion, the second Tribunal held that the applicant lodged a previous application with the Tribunal for review of the delegate's decision on 24 March 2003. the Tribunal accepted that application, and conducted a review, the Tribunal has therefore already discharged its functions under the Act to review the delegate’s decision; and thereforeit no longer had jurisdiction in relation to that decision.The proceedings before this CourtThe applicant filed the application in this Court on 29 March 2007 and the amended application on 13 June 2007 seeking review of the second Tribunal decision.The applicant appeared in person with the assistance of an interpreter. Ms Buchanan appeared for the first respondent.Grounds of application I note that, to the extent that any of the applicant’s grounds of review go beyond the issue of whether the second Tribunal erred in finding that it had no jurisdiction to entertain the applicant’s application before it, they are not relevant to the task before this Court.The relevant lawIn Jayasinghe v MIEA (1997) 145 ALR 532, Goldberg J, after a detailed examination of the case law and relevant statutory provisions and applying the doctrine of functus officio whereby once the statutory function is performed there is no further function or act for the person authorised under the statute to perform, held that the Tribunal does not have the power to reconsider or reopen a final decision it has made on its review determining the substantive application.In Leung v MIMA (1997) 150 ALR 76, Finkelstein J at 85 referred to Jayasinghe v MIEA and to the decision of Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, in which French J concluded that there was no power to reconsider an entry permit refusal by a Minister:French J held that the implication of such a [reconsideration] power could generate endless requests for reconsideration and given that the Migration Act 1958 (Cth) contains specific provisions for the review of decisions the implication should not be made. In Jayasinghe Goldberg J came to the same conclusion with regard to the [RRT]……In Singh v MIMA (2001) 183 ALR 531 at [35], Merkel J stated that …the RRT is functus officio upon a valid decision being handed down in accordance with the requirements of the Act. This statement in Singh was adopted by Jacobson J in SZEBS v MIMA [2006] FCA 456 at [9].In MIMA v Bhardway (2002) 209 CLR 597, the High Court recognised that some qualification should be placed on the doctrine of functus officio by its adoption of the reasoning of the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 862, that:…as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision …However, the [Supreme Court of Canada] held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and "there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation". (Gleeson CJ at [7]) and that: ……In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct….a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so… (Gaudron and Gummow JJ at [53]).Application to present proceedings
In the present context, the first Tribunal decision was a valid and final decision reviewing the delegate’s decision. In this regard, it was the subject of judicial scrutiny by the Federal Magistrates Court (SZCKX v MIMA & Anor [2005] FMCA 1810), the Federal Court (SZCKX v MIMA [2006] FCA 528), and the High Court (SZCKX v MIMA & Anor [2006] HCATrans 707). No jurisdictional error was found. As relevantly observed by Hayne J in SZCKX v MIMA & Anor [2006] HCATrans 707 at [15]:In the Federal Court, Edmonds J concluded that no error of law had been demonstrated in the reasoning of the Federal Magistrates Court and that no jurisdictional error had been committed by the Tribunal. There is no reason to doubt the correctness of those conclusions. Applying the relevant legal principles, I consider that the second Tribunal was correct in finding that it did not have the power to reconsider the delegate’s decision a second time. I accept that the second Tribunal made a valid decision in accordance with the requirements of the Act and thereby discharged its statutory functions under the Act. The second Tribunal was thus functus officio and no longer had jurisdiction in regard to the delegate's decision. I accept the first respondent’s submission on these matters. In these circumstances, the qualification on the doctrine of functus officio, as recognised by the High Court in MIMA vBhardway, does not apply. The first respondent further submits, or in the alternative that, by reason of s.412 of the Act, the applicant’s second application filed with the Tribunal for review of the delegate’s decision was lodged out of time and hence the Tribunal lacked jurisdiction. I do not consider that the Tribunal based its conclusions that it had no jurisdiction upon this point, rather raising the relevant time limits to indicate that the first Tribunal decision was valid in this respect. In any event, given my determination above, it is not necessary to determine the point.
ABUSE OF PROCESS [CKX]The first respondent seeks orders pursuant to Rule 13.10 of the Federal Magistrate’s Court Rules that the application be summarily dismissed as having no reasonable prospects of success, or in the alternative, that the application be dismissed as being frivolous or vexatious and/or an abuse of the process of the court. The first respondent further invites the Court to make orders that no further application for review of the delegate's decision or the first or second Tribunal decision be permitted without leave of the Court.Rule 13.10 of the Federal Magistrates Court Rules provides that the Court may order that a proceedings be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim, orthe proceeding or claim for relief is frivolous or vexatious, orthe proceeding or claim for relief is an abuse of the process of the Court.In Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78, The Federal Court held (at 85), that:…the claim is an abuse of process because it is brought as a means of obtaining some advantage for which such proceedings are not designed or some collateral advantage beyond what the law offers.In Walton v Gardiner (1993) 112 ALR 289, the High Court, at 298, held that:…proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail …. proceedings before a court should be stayed as an abuse of process if…..their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which has already been disposed of by earlier proceedings.Ms Buchanan submits that it can be inferred from the litigation history of this matter that the present application has been bought as a means of obtaining some advantage for which the proceeding is not designed or for some collateral advantage beyond what the law offers, namely, for the purpose of delay to extend the applicant's lawful stay in Australia.I consider that it is open to the Court to draw the inference sought by the first respondent in this regard that the applicant is seeking to use the Court’s process in this case purely for the collateral purpose of extending his stay in Australia. The relevant legal principles, where repeated applications for review of a delegate’s decision are made, are now well-settled and should be well-understood. Given the past chronology of this case, and where the applicant has brought a second wholly unmeritorious application and amended application before this Court, I am satisfied that the present proceedings constitute an abuse of the process of the Court. In these circumstances, I consider that appropriate orders should be put in place to ensure that the Court’s process is not further abused in the future.
PROCEDURAL FAIRNESS S.424A(1); s.425(1) [LBD]Ground of applicationThe sole ground of the application is that:The Tribunal committed jurisdictional errors of law in that it denied the applicant procedural fairnessProcedural fairness principles It is important to note at the outset, that the applicant has not provided any particulars to explain how the Tribunal may have denied him procedural fairness. Further, no evidence by way of the transcript of the Tribunal proceedings has been put before the Court by the applicant on the point. The applicant also did not file any written submissions to elaborate on this ground of review. Nonetheless, given that the applicant was unrepresented in these proceedings, the Court has considered the assertion by the applicant in terms of the statutory requirements of procedural fairness under Part 7 Division 4 of the Act. In this regard, the High Court in SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63, 231 ALR 592, at [26] noted that:It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.The applicant is not entitled to common law procedural fairness, given s.422B(1) of the Act, which provides that:This Division [Division 4 of Part 7 of the Act] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters to be dealt with.Section 425 and s.424A set out particular procedural fairness obligations of the Tribunal. The remaining sections of Division 4 set out various additional mandatory and discretionary procedural steps for the Tribunal to take in conducting a hearing, including various ways open to the Tribunal to obtain information. Procedural fairness requirements (whether in statute or at common law) deal with the process of decision-making, not the merits of the decision. As indicated by the High Court in SZBEL: what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision. [at 25] This limitation on the procedural fairness requirements referred to in SZBEL is consistent with case law that it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558], NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. There is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].Also, as observed by the High Court in SZBEL, procedural fairness does not require the Tribunal to disclose its mental processes in reaching its decision: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……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. [at 48] The invitation to attend the Tribunal hearingThe invitation by the Tribunal to the applicant to appear before the Tribunal, issued on 18 January 2007 (CB 50-51):informed the applicant that the Tribunal was unable to make a decision in his favour on the information before it, and invited him to attend a hearing in order to submit further evidence in support of his claims: s.426(1)provided the applicant with notice of the specified day, time and place at which the applicant was scheduled to appear (21 February 2007): s.425A(1);was sent to the applicant by post to the last address for service nominated by the applicant: s.441A(4)(c)(i);provided a period of notice to the applicant that complied with the prescribed period of 14 days: Regulation 4.35D of the Migration Regulations 1994 (Cth) , andinformed the applicant of the options available to the Tribunal if he failed to appear at the scheduled hearing: s.426A Taking each of these statutory requirements into account, I consider that the Tribunal invitation complied with Part 7 Division 4 of the Act, and elsewhere, regarding the content of the invitation. Section 425(1)Section 425(1) requires the Tribunal to give the applicant the opportunity to attend the Tribunal hearing, to give evidence and present arguments relating to ‘the issues arising in relation to the decision under review’.The requirements of s.425(1) were considered by the High Court in SZBEL, at [33]-[48]. It held that the Tribunal must first identify to the applicant the issues under review. In that context the High Court stated that:The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant [at 35].And further:…..unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision [at 36].The High Court also observed that some issues may be obvious and not require that they be specifically identified:First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor [at 47].Having identified the issues, the Tribunal must then give the applicant the opportunity to attend a hearing, to give evidence and present arguments relating to the determinative issues. In SZBEL, the High Court concluded that in the case before it: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 [at 44].Applying the principles in SZBEL to the present case, the Court must consider whether the Tribunal complied with the procedural fairness requirements of s 425(1) by:either itself and/or the delegate, identifying to the applicant the determinative issues under review, andgiving the applicant a sufficient opportunity to give evidence, and to make submissions, about these determinative issues before it reached its conclusions in relation to the decision of the delegate under review.I am satisfied that the applicant would clearly have been put on notice from the delegate’s reasons for decision that one determinative issue for the Tribunal was the credibility of his claims that he was an active member of the Falun Gong movement since 1994 and that, in consequence, he was actively being sought by Chinese authorities, and that he feared persecution. Indeed this issue was the subject of specific evidence at the Tribunal hearing when the applicant appeared to retract his earlier claims before the delegate and told the Tribunal that he had never been a Falun Gong practitioner (CB at 78). The applicant would also clearly have been put on notice (from the two s.424A letters (CB 60-64), and from the summary of the questions asked of, and the evidence given by, the applicant at the hearing (CB 68-74)), that the other determinative issues in this case concerned the assertions by the applicant regarding his issuing of a travel certificate to Mr Wang; whether such a certificate was necessary for Mr Wang to travel to Beijing; his alleged identification and persecution by the PSB in consequence of the actions of Mr Wang; his consequential on-going dealings with the local Chinese police; and whether the applicant came to Australia in the secretive circumstances that he claimed.I am also satisfied, (taking into account the two s.424A letters, with the invitations to comment on information referred to in those letters and/or provide further information, and from the summary in the Tribunal decision record of the questions asked of, and the evidence given by, the applicant at the Tribunal hearing), that the Tribunal gave the applicant a sufficient opportunity to give evidence, and to make submissions, about each of these determinative issues. It is also apparent from the s.424A letters and the decision record that the Tribunal clearly identified to the applicant that his credibility on each of the issues was important in its determination of his claims. It further put to the applicant in the two s.424A letters, the particulars of the material inconsistencies that are referred to in the Tribunal's subsequent findings and reasons (although it would seem that the Tribunal was not required to do so: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18], see post. The applicant chose not to respond to either of the s424A letters. Section 424ASection 424A(1) requires the Tribunal, prior to making its decision:to give an applicant, in the way that the Tribunal considers appropriate, "clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review"to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review, andto invite the applicant to comment on or respond to it.The provision only applies to "information". This concept covers only evidentiary material or documentation, not the Tribunal's subjective appraisals, thought processes or determinations. As observed by the High Court in SZBYR at [18]:… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.In regard to the information falling within s.424A(1), I am satisfied that the Tribunal in the two s.424A letters:gave the applicant clear particulars of the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review, including information relating to whether it was necessary to obtain a certificate to travel to Beijing and information relating to whether the applicant in fact issued a certificate to Mr Wangclearly stated that the information was relevant to the review, and that it may lead the tribunal to affirm the decision that was under review, andinvited the applicant to comment on or respond to it.In any event, the Tribunal was not required to put to the applicant country information upon which it relied: s.424A(3)(a); nor was it required to put to the applicant information that “the applicant gave for the purpose of the application for review”: s.424A(3)(b). These important statutory exceptions to s.424A(1) are clearly relevant in the present context to the information which the Tribunal was bound to put to the applicant.The applicant did not respond to either letter. As provided under s 424C(2), the Tribunal was entitled to make a decision on the review without taking any further action to obtain the applicant's views on the information.I am therefore satisfied that there has been no breach of s425(1) or s.424A of the Act. Overall, I detect no irregularity or unfairness in the procedure adopted by the Tribunal in its review of the applicant’s case. I consider that the Tribunal accorded the applicant procedural fairness in accordance with the statutory framework.ConclusionThe Court finds that the Tribunal fully complied with procedural fairness requirements in Division 4 of Part 7 of the Act in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention and that therefore the applicant does not satisfy the criterion set out in s 36(2) for a protection visa.
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