SZLSZ v Minister for Immigration - [2008] FMCA 378

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLSZ v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 378

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal to have regard to all relevant country information only – whether the Refugee Review Tribunal acted in a way that is fair and just in accordance with s.422B(3) of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal’s findings were “unclear and ambiguous” – whether the Refugee Review Tribunal correctly considered the applicant’s risk of harm.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91(3); 91R; 91R(3); 91S; 424A; 424A(3)(a); 424A(3)(ba); 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272
SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280
SZESF v Minister for Immigration and Multicultural Affairs [2007] FCA 6
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314
Pollocks v Minister for Immigration and Multicultural Affairs (2000) 194 ALR 130

Applicant:

SZLSZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3789 of 2007

Judgment of:

Emmett FM

Hearing dates:

5 & 10 March 2008

Date of last submission:

10 March 2008

Delivered at:

Sydney

Delivered on:

1 April 2008

REPRESENTATION

Applicant appeared in person with Mandarin interpreter.

Counsel for the Respondent:

Mr S. Lloyd

Solicitors for the Respondent:

Ms E. Baggett, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3789 of 2007

SZLSZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 October 2007 and handed down on 13 November 2007.
The Applicant claimed to be from the People’s Republic of China (“China”) and to be a former member of the Communist Party and the “station leader” of a television station in China (“the Applicant”).
The Applicant arrived in Australia on 11 March 2007 having departed legally on a passport issued in his own name and a visa issued on 24 January 2007.
On 24 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
On 22 October 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 December 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The Applicant’s claims

In his protection visa application, the Applicant claimed that he feared persecution by the Chinese authorities for his speaking out against the suppression of the right of Christians to worship freely and for his claimed assistance of Christian groups to withstand the alleged disruptions of the Communist Party of Christian worship and gatherings in China. The Applicant further claims that he “was almost charged and put into prison”, that he “[s]ooner or later would face the danger of being put into imprisonment” and further that he wanted to ‘pursue’ Christianity.

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.
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 political 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 persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Delegate’s decision

On 14 June 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate stated in the decision record that the Applicant’s claims were “general and unsubstantiated” and cited inconsistencies in the Applicant’s evidence; a lack of documentary evidence; the apparent questionable authenticity of documents provided in relation to his claimed dismissal from his position of ‘station leader’ at the television station at which he worked in China; inconsistency with independent country information; and a lack of evidence that the Applicant has an “ongoing and genuine commitment to Christianity in China” as reasons for the Delegate’s lack of satisfaction that the Applicant has a well-founded fear of persecution if he were to return to China in the near future.

The Tribunal decision

On 19 July 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided a further statement in support of his review application in which he expanded upon his earlier claims.
On 2 August 2007, the Tribunal invited the Applicant to attend a hearing on 28 August 2007. The Applicant attended that hearing and gave oral evidence.
The Applicant gave oral evidence before the Tribunal in which he expanded upon his written claims and made the additional claims that he had been in hiding before leaving China and that he had not worked for the television station in China since 2004, despite saying in his protection visa application that he was currently employed there.
On 25 September 2007, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
In its s.424A Letter the Tribunal gave information to the Applicant that it considered would be part of the reason for affirming the decision under review. In particular, the Tribunal identified inconsistencies in the Applicant’s written claims; his protection visa application; previous visa applications; and his oral evidence to the Tribunal. The Tribunal also noted in the letter the Applicant’s new oral claim that he was being followed in 2006 and had gone into hiding because of his fear of persecution. The letter informed the Applicant that these inconsistencies were relevant to his review because they raised doubts about the truthfulness of all his claims.
The s.424A Letter also informed the Applicant that his claims of Christian practice in Australia were internally inconsistent which may lead the Tribunal to conclude that such conduct should be disregarded in accordance with s.91(3) of the Act.
The s.424A Letter also identified inconsistencies in the Applicant’s written statement in support of his protection visa application and a tourist visa application dated 12 January 2007, relating to his employment. The letter informed the Applicant that such information was relevant because it may lead the Tribunal to conclude that he had been employed by the same employer for 27 years and had not been dismissed because of his involvement and continuous support of Christians.
On 4 October 2007 the Applicant responded to the Tribunal’s s.424A Letter.
In its decision, the Tribunal identified the written claims made by the Applicant in support of his protection visa application. A fair reading of the Tribunal’s decision and those claims makes clear that the Tribunal fairly and accurately summarised those claims.
The Tribunal also summarised the claims made by the Applicant in his statement attached to his review application. A fair reading of the Tribunal’s decision makes clear that the Tribunal fairly and accurately summarised those claims.
The Tribunal identified with great specificity the evidence given by the Applicant at the hearing. The Tribunal noted exchanges it had with the Applicant about various aspects of his evidence. In particular, the Tribunal noted that it put matters of concern to the Applicant about his various claims and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information about religious freedom in China and noted the Applicant’s responses.
The Tribunal also put to the Applicant that his claim of becoming a Christian following his arrival in Australia had the consequence that the Tribunal must decide whether his attending the Church in Australia was to strengthen his claim. The Tribunal noted the Applicant’s response.
The Tribunal then quoted the s.424A letter dated 25 August 2007 and quoted the Applicant’s response. The Tribunal also noted that in his response, dated 9 October 2007, the Applicant attached a letter from Reverent Stephen Li on the letterhead of the Ashfield Chinese Baptist Church, dated 5 October 2007. Reverend Li’s letter stated that the Applicant had been worshipping at the Church every Sunday since early 2007 and joined in other activities of the Church. The Tribunal noted that Reverend Li said that “he found the applicant had a genuine belief in Jesus Christ”. The Tribunal also noted that Reverend Li said that the Applicant asked to be baptized on 30 September 2007 but had missed this baptismal service and said that the Church was going to arrange a baptism lesson and ask the Applicant to take part in future.
The Tribunal identified and quoted from independent country information to which it had regard. The Tribunal identified in its decision the anti-Christian activities in Fujian province in 2006, based on country information. The Tribunal also noted independent country information revealed that, on 1 March 2005 China had introduced new regulations to protect the rights of registered religious groups. The Tribunal noted that “critics say they give the authorities broad discretion to define what activities are permissible.” The Tribunal noted that Falun Gong is labelled as a cult and remains banned.
The Tribunal did not find the Applicant to be a truthful or credible witness. The Tribunal found that inconsistencies in the Applicant’s evidence were the result of the Applicant’s attempts to manufacture claims of persecution where none was actually suffered or feared. The Tribunal found the Applicant’s evidence in relation to his employment and dismissal to be inconsistent and implausible. The Tribunal rejected the Applicant’s explanation of concerns put to him by the Tribunal in its s.424A Letter and found the Applicant was untruthful regarding his employment history.
The Tribunal found that the Applicant’s claim that he had gone into hiding, made at the hearing for the first time, was a claim of late invention designed to strengthen his case for a protection visa. The Tribunal made similar findings in relation to the Applicant’s claim of being followed by the “Religious United Front”.
The Tribunal rejected comprehensively the Applicant’s evidence of alleged association with Christianity in China and dismissal from his employment as a result.
The Tribunal found that the Applicant was not a Christian in China and that his involvement in Christianity commenced when he arrived in Australia.
The Tribunal had regard to the letters from Reverend Li and Church pamphlets showing the Applicant’s weekly attendance at Church services and bible study group. However, the Tribunal found that having regard to the Applicant’s overall credibility and the unsatisfactory nature of the Applicant’s explanations as to why he was not involved in Christianity in China, the Tribunal was not satisfied that the conduct engaged in by the Applicant in Australia was other than for the purpose of strengthening his claim to be a refugee. The Tribunal therefore purported to disregard that conduct in accordance with s.91R(3) of the Act.
The Tribunal concluded its findings by stating the following: “the Totality of the Applicant’s evidence shows a propensity to fabricate claims and tailor and shift evidence in a manner which achieves his own purpose.”
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for any Convention-related reason and, accordingly, affirmed the decision under review.

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 7 February 2008, the matter was set down for hearing on 5 March 2008 and the Applicant referred to the Legal Advice Scheme. The Applicant was given leave to file and serve an amended application and any evidence in support by 22 February 2008. On 11 February 2008 a panel adviser was notified of her appointment by the Legal Advice Scheme.
On 4 March 2008, the day before the hearing, the panel adviser informed the Court and the First Respondent by email that she had been unable to provide advice within the timetable made by the Court on 7 February 2008 and requested further time. At the hearing on

4 March 2008
, the Applicant appeared unrepresented and the First Respondent consented to the hearing being adjourned to 10 March 2008 to provide further time to the Applicant to meet with the adviser.
The amended application was filed with the Court and emailed by the panel adviser to my Chambers on 7 March 2008, the last weekday before the hearing on 10 March 2008.
The Applicant confirmed that he relied on the grounds identified in the amended application filed on 7 March 2008.
The amended application does not comply with the rules of this Court and is a long and rambling document that does not clearly identify the grounds upon which the application is based. There is no identification of individual particulars in support of the grounds. Rather, each ground is followed by un-numerated paragraphs that appear to be more in the nature of submissions.
In his written submissions, counsel for the First Respondent stated the following about the amended application:
“2.    Although the application at first glance appears to contain six grounds of review, this initial impression is not accurate. The sixth ground is merely a conclusion. The previous five grounds contain particulars that include a collection of propositions that may be grounds and that have some (often oblique) relationship with the numbered ground of review.
3.     It appears from the correspondence that the author of the amended application has not been engaged by the applicant and will not attend Court to assist in developing and clarifying the grounds pleaded.
4.     In order to assist the Court, the first respondent attempts to isolate each proposition of any real substance in the amended application and to address them. This is generally done in order but where the propositions are repetitive or linked, they are dealt with together.”
On the basis that she had prepared the amended application, the panel adviser was requested by the Court to attend the hearing to explain to the Court the grounds of the amended application. The panel adviser attended Court and confirmed that she was the author of the amended application, however, was unable to offer the Court any further explanation about the nature of the grounds.
Counsel for the First Respondent was asked by the Court to identify what he understood the grounds to be. The panel adviser agreed that the distillation of the grounds by counsel for the First Respondent was accurate. At her request, the panel adviser was then excused by the Court from any further participation in the matter.
The Applicant made no meaningful submissions in support of any of the grounds save to complain that the findings by the Tribunal were unfair and incorrect.

Grounds 1 and 2

Grounds 1 and 2 appear largely to complain about the use made by the Tribunal of independent country information.
In particular, the grounds appear to contend that s.424A of the Act required the Tribunal to put the independent country information that it intended to use in support of any adverse credibility finding to the Applicant for comments. The grounds also appear to complain that the Tribunal used information that was, unsourced, selective, out of date and did not reflect the reality of China today.
Ground 2 appears to contend that some of the country information supported the Applicant’s claims and therefore should have been taken into account by the Tribunal.
Ground 2 also appears to contend that the Tribunal failed to give proper reasons for not accepting the country information supportive of the Applicant.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal had regard to all the claims made by the Applicant, both written and oral. The Tribunal identified the aspects of the Applicant’s claims that caused it concern and put those claims in the s.424A Letter to the Applicant and invited the Applicant to comment. The Tribunal took into account the Applicant’s explanations about matters of concern put to it by the Tribunal.
The Tribunal identified with particularity the independent country information to which it had regard, quoting large portions from documents it had considered.
The Tribunal had regard to independent country information in relation to the Applicant’s claims of bibles being in short supply in China. The Tribunal did not accept the Applicant’s assertion and preferred independent country research that bibles were available even to house-Church members.
For the most part the Tribunal’s adverse credibility findings were based on the inconsistencies in the Applicant’s own evidence and the unsatisfactory explanations about matters of concern put to him by the Tribunal. Both findings were open to the Tribunal on the evidence and material before it and for which it provided reasons. The findings by the Tribunal in relation to the Applicant’s credibility are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]).

The use of independent information and the weight given to it is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). It is open to the Tribunal to prefer independent country information that is different to evidence provided by the Applicant. For the Tribunal to do so does not demonstrate error going to its jurisdiction.
Otherwise, grounds 1 and 2 invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272).
In addition, in relation to grounds 1 and 2, I accept and adopt as part of these Reasons the submissions of counsel for the First Respondent set out in his written supplementary submissions as follows:
“Section 424A (see ground 1)
5. The applicant contends that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) because it failed to put to the applicant certain independent evidence which the Tribunal ultimately relied upon to make adverse credibility findings against the applicant.
6. The applicant acknowledges that there are authorities to the effect that country information generally falls within the exception contained in s 424A(3)(a) of the Act. The applicant appears to contend that the present case is different because here the country information is being used to make adverse credibility findings.
7. The distinction sought to be made by the applicant is without any authority and is contrary to authority, taking just two examples:
(a) In SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280, Sackville J held that country information pertaining to document fraud fell within the exception (although it had been used to make it easier for the Tribunal to reject documents advanced by the applicant in that case).
(b) In SZESF v Minister for Immigration and Multicultural Affairs [2007] FCA 6, Stone J determined that general country information (in the form of photographs) fell within the exception of s 424A(3)(a) even though it had been used to discredit the applicant in that case.
8. The applicant has also “further submitted” that the Tribunal was bound by procedural fairness to put to the applicant the “actual inconsistencies” between the country information and the applicant’s claims.
9. There is no duty to provide procedural fairness relating to the giving of an opportunity to comment on adverse information that is outside the express duties imposed by the Migration Act itself: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214.
10. It follows that if the applicant’s case relying upon breach of s 424A fails (as the Minister has contended above), there is no additional common law duty that can be relied upon.
11. The applicant seeks to support the existence of such a duty by referring to the fact that the Tribunal did give him an opportunity to comment upon certain country information at the hearing. That the Tribunal may have given such an opportunity does not establish that it was done pursuant to a procedural fairness obligation.
Selective provision of country information (see ground 1)
12. The applicant claims that the Tribunal committed legal error by putting a brief summary of the country information to the applicant which “was so selective that the tribunal misstated and understated that evidence”,[1] and so failed to give the applicant an opportunity to respond to a range of material on which the Tribunal relied to make its decision (p 3). Insofar as the applicant claims that the information extracted was “unsourced”, “selective”, “out of date”, and “does not reflect the true reality in China today”, it invites an impermissible enquiry into the merits of the Tribunal’s decisions.[2]
[1]     The summary in question is that: “County information states that the official religious policy has been liberally applied in Fujian Province” [CB 148.5]
[2]     Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, 291 per Kirby J.
13. In any event, the purpose of providing an opportunity to comment on information is to give the applicant the opportunity to respond to it with his own information. He could have advanced contrary country information if he wished or more recent information if any existed. This is all just the merits and does not reveal either a breach of s 424A or (if it were relevant) the common law duties of procedural fairness.
Section 422B(3) (see ground 1)
14. Subsection 422B(3) was inserted into the Migration Act in 2007 and applies to the present case. It provides:
In applying this Division, the Tribunal must act in a way that is fair and just.
15. The provision is directed to the manner in which the Tribunal applies its powers, procedures and discretions in the Division.
16. Section 424A creates a mandatory obligation when it applies. In the present case, that section did not apply in relation to country information. That being so, there was no duty to give a notice under s 424A and, as a result, there can be no question of the manner of exercise of that duty to which s 422B(3) could have application: see MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912, Gordon J at [26].
17. Subsection 422B(3) does not advance the applicant’s argument under s 424A: if there was a breach of that section, there is a jurisdictional error irrespective of s 422B(3) and if there was no breach of that section because it did not apply at all, then s 422B(3) has no relevance.
Error as to date of the s 424A letter (see ground 1)
18. The applicant observes that, in the Tribunal’s statement of reason, it refers to the wrong date of the letter sent under s 424A. There is no issue that the applicant did not respond to the s 424A letter in a timely fashion. A clerical error of the kind noted does not go to the Tribunal’s jurisdiction.
Country information (see ground 2)
19. The applicant makes a number of claims about country information.
20. First, it is said that there was some country information that supported some of the applicant’s claims.
21. Even if this is true, that reveals no jurisdictional error. The Tribunal was aware of it, mentioning it in its reasons. It was a matter for the Tribunal what weight it would give to different items of country information.
22. Secondly, it is said that the Tribunal should have raised the so-called supportive country information with the applicant at the hearing.
23. There is no basis in the Act or even common law natural justice jurisprudence for any such obligation.
24. Thirdly, the Tribunal failed to take this information into account.
25. This is said notwithstanding that the Tribunal has expressly referred to it in its reasons. This allegation has no substance.
26. Fourthly, the Tribunal did not weigh the supportive information against the adverse material; the Tribunal simply preferred the adverse material.
27. There is no basis in the evidence for this assertion. The Tribunal appears to have had regard to all of the material it discussed in its reasons. In addition, the weight to be given to items of evidence is a matter for the Tribunal.
28. Fifthly, the Tribunal failed to give proper reasons for not accepting the country information that is said to have been supportive of the applicant.
29. Even if this were true, and the Minister does not accept the premise upon which the submission is based, there would be no error.
30. In addition, where the elements of a claim have been considered, the failure to mention expressly items of evidence does not show jurisdictional error.[3] Furthermore, it is a matter for the Tribunal which country information it accepts. As the Federal Court stated in Lee v Minister for Immigration and Multicultural and 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.
31. Section 430(1)(b) requires the Tribunal to “set out the reasons for the decision”; in this case, the decision to affirm the decision not to grant the applicant a protection visa. It does not require the Tribunal to embark on an interminable exercise of setting out reasons for its reasons.[4]
32. Finally, the applicant contends that the Court should conclude that the Tribunal’s finding is not “based on all the evidence before it”.
33. It is not entirely clear what this means but a Tribunal’s findings do not have to be based on all the evidence before it. Assuming that evidence involves some aspect of conflict, it will necessarily be based only upon some of that evidence.”
[3]     Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]-[15] per Middleton J
[4]     See Re Minister for Immigration andMulticultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-423 [65], [67] (McHugh J)
Accordingly, grounds 1 and 2 are not made out.

Ground 3

Ground 3 complains of the findings made by the Tribunal about its rejection of the Applicant’s explanation about inconsistencies in claims made by him in other visa applications and claims made in his protection visa application and oral evidence. The Tribunal found the Applicant’s explanation to be internally contradictory. As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons.
Part of the Applicant’s complaint in ground 3 appears to be that the Tribunal stated in its decision that it would not place “great emphasis on minor inconsistencies of fact which the Tribunal accepts can occur for a variety of reasons unconnected with the credibility of an applicant”. The Applicant appears to submit that, in those circumstances, it was not open to the Tribunal to make adverse findings of the Applicant based on inconsistencies. However, it is a matter for the Tribunal which inconsistencies it finds to be minor and those which it finds affect its assessment of the Applicant’s credibility. Again, such complaint appears to be no more than seeking merits review which this Court cannot undertake.
In addition, in relation to ground 3, I accept I accept and adopt as part of these Reasons the supplementary submissions of counsel for the First Respondent set out in his written submissions as follows:
“Inconsistent information from applicant and consulate staff (see ground 3)
34. The applicant contends that the Tribunal did not provide reasons for, nor explain further, its conclusion that the applicant’s explanation of inconsistencies regarding his employment and the telephone conversation with consulate staff was “implausible” (p 4).[5]
[5]     CB 161.7
35. Pursuant to its obligation to provide reasons for the decision under s 430(1) of the Migration Act, the Tribunal has given the reasons for its decision to affirm the delegate’s decision not to grant the applicant a protection visa. One of those reasons is that the applicant’s explanation of inconsistencies in his evidence was implausible. As a matter of credit, the Tribunal did not accept the applicant’s account. This was a finding of fact which is rationally based on the evidence presented by the applicant and was open to the Tribunal.
36. The Tribunal was under no obligation to set out the evidence and other material upon which it found that the underlying propositions were “implausible”.[6] As McHugh J stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-423 [65], [67]:
[6]     Pollocks v Minister for Immigration and Multicultural Affairs (2000) 194 ALR 130 at [15] (Finkelstein J)
Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal....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.
37. Furthermore, the Tribunal added that the applicant’s explanation was internally contradictory and explained that contradiction.[7]
38. In short, the Minister contends that the Tribunal did provide reasons for its conclusion on the applicant’s response to the s 424A letter (even if that were necessary). In any event, a failure to provide adequate reasons is not a jurisdictional error.
39. The applicant seeks to explain the apparent internal consistency in his answer to the Tribunal and thereby contend that there was no inconsistency. His response at one point referred to the applicant’s “colleagues and [the] head of the chief editor’s office”, as if the word “colleagues” did not refer to the latter. He now seeks to explain that a later reference to his colleagues did include the head of the office.
40. It was open to the Tribunal to perceive an inconsistency in usage and it was not bound to write a further s 424A letter to the applicant as he contends.
41. Finally, the applicant complains that the Tribunal indicated that it would not give great emphasis to minor inconsistencies but, it is contended, that is what the Tribunal has done here.
42. The Tribunal did not consider the inconsistency to be minor and was entitled to give it such weight as it wished.”
[7]     CB 161.7
Accordingly, ground 3 is not made out.

Ground 4

Ground 4 appears to contend that the Tribunal was required to give to the Applicant country information relating to the availability of bibles in China. However, plainly such information is not specifically about the Applicant and is therefore excluded by s.424A(3)(a) of the Act.
Ground 4 also appears to submit that the country information relied upon was of a general nature. I accept the submission of counsel for the First Respondent that such submission again seeks merits review which this Court cannot undertake.
Ground 4 also appears to contend that the Tribunal’s findings are unclear and ambiguous.
A fair reading of the Tribunal’s decision makes clear that the Tribunal considered carefully all the evidence provided by the Applicant. As stated above in these Reasons, the Tribunal’s conclusions were based largely on its findings of adverse credibility arising from the inconsistencies in the Applicant’s evidence and the unsatisfactory nature of his explanations. The Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons. The Tribunal applied the correct law to the findings of fact as it found them to be in reaching its conclusions.
In the circumstances, there is no apparent ambiguity or lack of clarity in the Tribunal’s decision record that would support the contention that the Tribunal had fallen into error for that reason.
Ground 4 also appeared to contend that the Tribunal erred in requiring the Applicant to be singled out for harm as a Christian sympathiser. I accept the submissions of the First Respondent that a fair reading of the Tribunal’s decision does not disclose that the Tribunal was attempting to allege that such a test for harm was required. Rather, the Tribunal was simply noting that, if the Applicant had been believed to be a Christian by the Chinese Communist Party, he would have been expelled from the party. However, the Tribunal noted that the Applicant was not expelled from the Chinese Communist Party for any such reason.
Ground 4 also appears to complain that the Tribunal did not give reasons for rejecting the Applicant’s evidence relating to his involvement with Christianity in China. However, it is not necessary for the Tribunal to make a factual finding about every matter asserted by the Applicant. A fair reading of the Tribunal’s decision makes it clear that the Tribunal found the Applicant to be an untruthful witness who had “a propensity to fabricate claims and tailor and shift evidence in a manner which achieves his own purpose”. That finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.
In addition, in relation to ground 4, I accept I accept and adopt as part of these Reasons the supplementary submissions of counsel for the First Respondent set out in his written submissions as follows:
“Information pertaining to access to Bibles (see ground 4)
43. The applicant first complains that the s 424A letter did not refer to the country information pertaining to the availability of Bibles in China. For the reasons noted above, the Tribunal was not bound to include reference to such information in a s 424A letter.
44. The applicant then contends that the country information relied upon was of a general nature and did not provide a reliable basis to reject the applicant’s evidence. This submission goes directly to the merits of the case. The inference drawn by the Tribunal was not illogical and was open to it.
Information pertaining to Christianity in China (see ground 4)
45. The applicant contends that the Tribunal’s findings are unclear and ambiguous.
46. It is sometimes the case that the Tribunal will examine matters raised by a review applicant which it ultimately does not accept in the course of a general adverse finding as to credibility. The fact that the Tribunal discusses or analyses matters that it does not ultimately accept should not be used as a basis for ambiguity.
47. In this case, the applicant claimed to have been a member of the CCP and also to have a senior position in a particular television station. He claimed that he assisted certain Christians and that this led him to be expelled from the CCP. He claimed that he continued to appeal his expulsion from the CCP to the point that the CCP arranged for him to be removed from his employment and for other harm to follow.
48. The Tribunal rejected his claim that he had ever suffered harm from providing assistance to Christians (at CB 165.4), which constitutes an effective rejection of his whole case. It also rejected his claim to have been dismissed from his employment. It also rejected his claims to have suffered “problems” from his past involvement in Christianity.
49. The structure of the Tribunal’s reasons is that from CB 160.7 to 165.4, the Tribunal is assessing the credibility of the applicant’s claims. While it made some findings in the course of that discussion, it was principally directed to explaining the conclusion for its adverse credibility finding.
50. The Tribunal, having rejected the core of the applicant’s claims, did not accept that he had ever suffered harm or that there was a real chance that he would face such harm in the future.
51. This approach reveals no error.
The alleged wrong test for harm (see ground 4)
52. The applicant contends that the Tribunal erred in requiring that the applicant be singled-out for harm as a Christian or sympathiser.
53. This is not correct. The applicant had made claims to the effect that he had been made an example of for having assisted Christians. The Tribunal was simply noting that dismissal from the CCP is the normal result of a CCP member adopting a religious affiliation.
54. The Tribunal was not stating a test but was explaining why it was making a certain finding on credibility with reference to the manner in which the applicant had advanced his claims.
Evidence pertaining to assisting Christians in China (see ground 4)
55. The applicant contends that the Tribunal identified no significant inconsistencies in the applicant’s evidence over time[?] pertaining to his involvement with Christianity in China. He complains that the Tribunal did not give reasons for rejecting these claims.
56. The Tribunal does not need separate and independent reasons for rejecting every aspect of an applicant’s claims. If the applicant’s credibility is adversely affected by some material it is open to the Tribunal not to believe all or some parts of that evidence.
57. In the present case, the Tribunal identified the reason that it formed a generally adverse view of the applicant’s credit. It was not required to do more than this in giving reasons for its decision.”

Accordingly, ground 4 is not made out.

Ground 5

Ground 5 appears to complain that the Tribunal erred in concluding that the Applicant did not respond to an inconsistency put to him in the s.424A Letter regarding his going into hiding. Such a complaint is misconceived in that the Tribunal was not obliged to put any such matter to the Applicant by reason of s.424A(3)(ba) which states, relevantly, “This section does not apply to information…that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department”.
The Tribunal quoted the Applicant’s response to the s.424A Letter and found that it was not satisfied by the Applicant’s explanation of the contradictory information provided by the Applicant in his protection visa application and given in oral evidence.
In addition, in relation to ground 5, I accept I accept and adopt as part of these Reasons the supplementary submissions of counsel for the First Respondent set out in his written submissions as follows:
“Alleged error in considering the response to the s.424A notice (see ground 5)
58. The applicant claims that the Tribunal erred in concluding that the applicant did not respond to an inconsistency put to him in the s 424A letter regarding his going into hiding.
59. During the hearing, the Tribunal put to the applicant the fact that he had stated in his protection visa application that he had lived at the same address for the last 10 years.[8] The applicant responded that he lived with his mother until September or October 2006 when he went into hiding.
60. In the s 424A letter, the applicant was informed of the following:
At the Tribunal hearing you stated that you were being followed in 2006 and that you went into hiding because of your fear of persecution. However, these claims were not raised in your protection visa application.[9]
61. In the response to the s 424A letter, the applicant wrote the following:
About being followed, I had only noticed that I was followed once or twice, I didn’t think it was such a serious matter, and following that I went to hide in some other places, I didn’t say it at the first place.[10]
The Tribunal recounted this response.[11] There was no other mention of going into hiding in that letter.
[8]     CB 161.10 – 162.1
[9]     CB 116 (para. 3)
[10]    CB 124 (para. 3)
[11]    CB 162.5
62. The Tribunal found that the applicant did not respond to this inconsistency in his reply to the s 424A letter: that is, the applicant did not address the contradictory information which the applicant provided in his protection visa application. The claim that the applicant did not consider the matter serious enough to mention does not address the contradiction (as opposed to the omission of evidence). As such, the Tribunal did not err in concluding that the applicant did not respond to this inconsistency.
63. In any event, it may be observed that the Tribunal was not under an obligation to include in the s 424A notice either the fact that the applicant did not claim to go into hiding or the fact that he had claimed to live with his mother for ten years before departing China. This is because of the new exception to s 424A introduced as s 424A(3)(ba), which provides:
(3)     This section does not apply to information:
…
(ba)   that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or…
64. As s 424A did not apply to this information, the Tribunal was entitled to draw its adverse conclusion from the applicant’s response or lack of response at the hearing itself.”
Again, the Tribunal made findings which were open to it on the evidence and material before it.
Accordingly ground 5 is rejected.
In the circumstances, the Tribunal was entitled to draw its adverse conclusion from the Applicant’s response or lack of response at the hearing itself.

Conclusion

The Tribunal complied with the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is 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 proceeding before this Court is dismissed with costs.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 11 March 2008