SZLUN v MIAC

[2009] FMCA 1013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLUN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1013

MIGRATION – Review of decision of Refugee Review Tribunal – whether open to Tribunal to make findings – Tribunal relied on “minor” or “trivial” matters – Tribunal made adverse credibility finding on the evidence as a whole – Tribunal entitled to test evidence – whether apprehension of bias – Tribunal’s reliance on minor or trivial matters – no apprehension of bias – no irrationality – no illogicality – no unreasonableness – Tribunal complied with s.425 – information not “information” for purposes of s.424A – information fell within exceptions – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.425, 424A

SZLUN v Minister for Immigration & Anor [2008] FMCA 426
SCAA v Minister for Immigration [2002] FCA 668
SZMOE v Minister for Immigration & Anor [2009] FMCA 116
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang  [1996] HCA 6; (1996) 185 CLR 259
SZMDS v Minister for Immigration and Citizenship [2009] FCA 210
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
SZMOE v Minister for Immigration & Anor [2009] FMCA 116
NADH  of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169
SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486
Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 206 ALR 471
SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751
SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693

Applicant: SZLUN

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2155 of 2008

Judgment of: Nicholls FM

Hearing date: 5 May 2009

Date of Last Submission: 5 May 2009

Delivered at: Sydney

Delivered on: 20 October 2009

REPRESENTATION

Appearing for the Applicant: In person

Solicitors for the Applicant: -

Counsel for the Respondents: Ms K Morgan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 19 August 2008 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2155 of 2008

SZLUN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 19 August 2008 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 July 2008, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 3 July 2007 (the Court Book – “CB”, CB 11). He applied for a protection visa on 17 July 2007 (CB 1 to CB 30 with annexures). This application was refused on 31 August 2007 (CB 33 to CB 40). The applicant applied for review on 28 September 2007 (CB 41 to CB 45).

2. On 16 November 2007 the Tribunal, as originally constituted (“the first Tribunal”), signed its decision to affirm the decision under review. On 3 April 2008, this Court ordered that the first Tribunal’s decision be set aside and that the matter be remitted to the Tribunal for determination according to law. (See SZLUN v Minister for Immigration & Anor [2008] FMCA 426, which is reproduced at CB 58 to CB 63.)

3. On 21 April 2008 the Tribunal wrote to the applicant inviting him to provide “any documents or written arguments” (CB 64 to CB 65).

4. The applicant was invited to attend a hearing before the Tribunal (as constituted for current purposes) scheduled for 12 June 2008 (CB 73). He ultimately did appear before the Tribunal on that date and gave evidence, with the assistance of an interpreter in the Mandarin language (CB 81 to CB 82). (The Tribunal’s account of what occurred is that in its decision record reproduced at CB 118 to CB 124.)

Applicant’s Claims to Protection

1. The applicant’s claims before the Tribunal were that in March 2007 he had come to the attention of the Public Security Bureau (“PSB”) in China because of his alleged involvement in antigovernment activities. Specifically, because he had lived in Taiwan for four years (with his second wife), and he was suspected of writing certain letters to the National People’s Congress (“the NPC”) seeking rights for Taiwan.

2. He claimed to have been detained for one month where he was “interrogated, beaten, tortured, threatened and warned”, was provided with inadequate food, and prevented from contacting his family, and from obtaining legal advice (CB 116.3). Also in prison with him was a person whom he had met in Taiwan (“Mr Li”). This person died in hospital because of the treatment he received while in prison.

3. He claimed that upon release, he visited certain government agencies and distributed material that was opposed to the “Communist dictatorship” (CB 116.8 to CB 116.10). He was again questioned by the PSB, his house was searched, and his family was told that the PSB “wanted” him for antigovernment activities (CB 117.1).

The Tribunal’s Findings

1. The Tribunal’s “Findings and Reasons” are set out in its decision record ([69] to [96] at CB 124 to CB 130). The Tribunal comprehensively rejected all of the applicant’s claims to fear Convention related persecution in China. It made a general finding that the applicant was not a credible witness. (See [87] at CB 129.1. See also [73] to [86] at CB 125 to CB 128.) It also found that it was not satisfied that the “evidentiary” documents provided by the applicant at hearing contained “truthful and/or accurate information” ([88] at CB 129.1).

2. Based on this, it did not accept that the applicant had been married to a “Taiwanese citizen”, or that the Chinese authorities took an adverse interest in him arising from a connection to Taiwan ([89] at CB 129). In light of these findings, the Tribunal did not accept that police had ever searched his home, or had detained him, or had suspected him of writing letters in support of Taiwanese rights.

3. Consequently, the Tribunal was not satisfied that he had been harmed while in detention, that he had met another person while in detention, that this person subsequently died, that he had organised protests or disseminated information with this person’s wife, that he or his friends had been questioned further by police, that he had left China out of fear,  that police had contacted his family indicating that he was wanted for antigovernment activities, or that he was perceived as an antigovernment movement leader ([90] to [92] at CB 129).

4. In short, it rejected the applicant’s factual account of what he said had relevantly occurred in China.  

5. Accordingly, it did not accept that the applicant had suffered Convention related harm, nor that he would experience persecution in the reasonably foreseeable future upon return to China arising from his claimed political opinions and actions. Therefore, it was not satisfied that Australia owed protection obligations to him.

Application to the Court

1. The application to this Court puts forward the following grounds:

   “1. The Tribunal’s finding is overly exact or fastidious; and it has cavilled at my claims or evidences; and it is apparently unreasonable, illogical and unfair.

   Particulars

   In the Tribunal’s decision, it stated that:

   74 The applicant gave evidence that on 6 March 2007, six police, one village official and one local PSB, went to his home. [I]n the Statutory Declaration that he had provided in support of the application for a protection visa, which the Tribunal considers to be lengthy and comprehensive, there is no mention of eight people going to his home but rather it is noted that on 6 March 2007, ‘many police’ went to his home. At paragraph 9 of the Statutory Declaration, he said ‘many police suddenly came to my home …’

   Mostly relied on the difference between ‘six police, one village officials and one local PSB’ and ‘many police’, the Tribunal made a finding that it ‘… those details were not included in the Statutory Declaration, suggests fabrication, raising doubts about the veracity of his claims and credibility generally’.

   In the Tribunal’s decision, it stated that:

   75 The applicant gave evidence that the incident on 6 March 2007 happened in the evening at exactly 9.30 pm, The Tribunal notes that in the Statutory Declaration there is no mention of the exact time of 9.30 but that the incident occurred in the evening.

   Simply relied on the difference between ‘9.30pm’ and ‘in the evening’, the Tribunal made a finding that ‘… the fact that 9.30 was not mentioned in the lengthy and comprehensive Statutory Declaration, suggests fabrication, raising doubts about the veracity of his claims and credibility generally …’

   In the Tribunal’s decision, it stated that:

   77 The applicant gave evidence that he personally sent Mr Li to the hospital on 31 March 2007, ‘The Tribunal asked him which hospital and he said to Fuqing City Hospital. The applicant confirmed that he had personally taken Mr Li to the hospital. The Tribunal notes that at paragraph 13 of his Statutory Declaration, he has claimed that Mr Li had been sent to the hospital by Mr Li’s family, inconsistent with his oral evidence. When this was put to him, he said that he had informed Mr Li’s family and went with his family to the hospital, which is not what he had said in writing. The applicant said it was a fact. He said that after he was released, he called Mr Li’s family and together they took Mr Li to the hospital.

   Only based on the difference between the matter that ‘Mr. Li had been sent to the hospital by Mr Li’s family’ and the matter that Mr. Li had been sent to the hospital by Mr. Li’s family and me, the Tribunal made a finding that ‘… the inconsistency suggests fabrication raising doubts about the veracity of his claims and his credibility generally’.

   In the Tribunal’s decision, it stated that:

   78 Furthermore, the Tribunal notes that in the Statutory Declaration, there is no mention of Mr. Li being taken to Fuqing City Hospital …

   Only based on the difference between ‘the hospital’ and ‘Fuqing City Hospital’, the Tribunal raised ‘… doubts about the veracity of his claims and his credibility generally.’

   In the Tribunal’s decision, it stated that:

   80 Furthermore the Tribunal notes that in the Statutory Declaration provided by the applicant, there is no mention of the dated of 10, 11 and 12 April 2007.

   The Tribunal then made a finding that ‘… there is no mention of the dates in the Statutory Declaration suggests fabrication, raising doubts about the veracity of his claims and credibility generally …’

   All of the above-mentioned evidences have apparently demonstrated that the Tribunal’s finding is overly exact or fastidious and that it has cavilled at my claims or evidences and that it is apparently unreasonable, illogical and unfair. Obviously, the Tribunal failed to bring an independent mind to look at all of my claims or evidences properly and fairly.

   2. The Tribunal’s question at the Tribunal’s hearing was unclear and the Tribunal’s question made me confused.

   [Particulars follow]

   3. The Tribunal failed to comply with its obligations under s.425 of the Act.

   [Particulars follow]

   4. The Tribunal failed to comply with its obligation under s.424A(1) of the Act.”

   [Particulars follow]

Hearing Before the Court

1. This matter first came before a Registrar of this Court on 18 September 2008. It was listed for hearing on 5 May 2009 before another Federal Magistrate. It was subsequently transferred to my docket in May 2009.

2. When the matter came on for hearing on 5 May 2009, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms K Morgan of Counsel appeared for the first respondent.

3. Much of the applicant’s complaints in his application derive from the Tribunal’s view of his evidence at the hearing. A view that was, in large part, derived from what the Tribunal found to be inconsistencies or inaccuracies in his evidence.

4. Three matters, in particular, caused me to adjourn the hearing to enable the applicant to put a transcript of the Tribunal hearing before the Court.

5. The first was that the Tribunal’s reasoning, and findings, relied on a number of matters which, on their face, appeared to be minor or trivial. These matters were said to be inconsistencies between the applicant’s evidence at the hearing and what he had put in a statutory declaration in support of his claims. These were referred to in the application to the Court and pressed by the applicant. (See ground one.)

6. The second matter was that the applicant appeared unrepresented before the Court. Although he was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”, he may not have understood the importance of putting a transcript of the Tribunal hearing before the Court to provide evidence in support of the first three grounds in the application.

7. Third, the seemingly trivial or “minor” nature of some of what was discussed at the Tribunal hearing, which was based on the Tribunal’s own account, and the length accorded to such matters in the Tribunal’s account, when read in light of the subsequent findings, gave cause for concern as to whether it would be open to the applicant to assert an apprehension of bias on the part of the Tribunal. Such a claim, of course, would be difficult to establish without reference to the actual transcript of the hearing. (See SCAA v Minister for Immigration [2002] FCA 668 per von Doussa J at [38]: “In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.”)

8. I also had in mind the consideration given by Smith FM recently in SZMOE v Minister for Immigration & Anor [2009] FMCA 116 (“SZMOE”), particularly where his Honour reviewed a transcript of a hearing before the Tribunal, and found, amongst other things, that the conduct of the hearing, involving the Tribunal’s questioning of the applicant in relation to what were (on their face) minor or trivial matters (for example, see SZMOE at [19] and [25]), or the rejection as unsatisfactory of what otherwise would be thought by any well informed lay observer, to be reasonable answers to its questions. (See, for example, [17] to [18] of SZMOE.)

9. The applicant was given a month to put any transcript before the Court. Both parties were given the opportunity to file written submissions (in the case of the Minister, further written submissions).

Resumed Hearing Before the Court

1. The hearing resumed on 6 August 2009. The applicant had not provided any affidavit attaching a transcript. Instead, he filed written submissions which contain what appear to be “excerpts” from the hearing with the Tribunal. The Minister filed supplementary submissions in response.

2. The applicant pressed his written submissions. Ms Morgan, who again appeared for the Minister, formally objected to those parts of the submissions, which purported to be a partial transcript of the hearing, being treated as such by the Court.

3. The application sets out grounds that, on their face, would benefit from a transcript of the Tribunal hearing being put before the Court. The applicant explained that he was not employed, had financial difficulties, was reliant on friends, and that he therefore had been unable to obtain a full transcript of the Tribunal hearing.

4. While this may be an explanation for his difficulty in obtaining a transcript from a “NAATI” (the National Accreditation Authority for Translators and Interpreters Ltd) accredited translator through a normal commercial medium, he made no submissions that he sought to obtain a transcript through any other way. (For example, through one of the many “Chinese” community agencies in Sydney who provide welfare, and other assistance, to people with a similar ethnic background to the applicant, including those who are applicants for protection visas.)

5. Further, the applicant first appeared before a Registrar of this Court over ten months before the occasion of the “resumed” hearing before the Court.

6. Since that time, he has been referred to a lawyer. On his own submission, he has friends on whom he extensively relied. Before the Tribunal, he was assisted by a registered migration agent (CB 43 and CB 111).

7. In my view, even with the stated financial difficulties, the applicant has had a very long period within which to overcome the financial constraints (through other means available to him) which he now says prevented him from obtaining a transcript.

8. Before the Court, the applicant also stated that he had been told by an “interpreter” that the Minister should provide a transcript. That the applicant chose to follow this advice, and not pursue any other avenues available to him, particularly in the last few months, is unfortunate. But, in the circumstances of this case, and in light of the applicant’s written submissions (which include what he says relevantly occurred at the Tribunal hearing) it does not provide a basis for requiring the Minister to provide a transcript to assist his case.

9. At the hearing before the Court the applicant subsequently requested that the Minister provide a transcript. Notwithstanding the obligations flowing from the Minister’s public statement as to being a “model litigant” in matters of this type, I was not persuaded, in light of the applicant’s written submissions, and what he sought to rely on, and in light of submissions by Ms Morgan on this issue, and the opportunity provided to the applicant, that it was necessary, or appropriate, to burden the Minister with this task. (See further below.)

Other Submissions

1. The applicant also submitted that the Tribunal had doubts about the “marriage certificate” that he had provided. It did not believe its “authenticity”. This, he said, influenced the Tribunal’s attitude to his other evidence, and led it to doubt the “veracity” of his claims.

1. He also submitted that the Tribunal’s finding as to inconsistencies between his oral evidence and his statutory declaration had been the subject of questioning at the hearing and that he had “tried” to give the Tribunal a “clear picture” of what had happened.

2. Ground one of the application asserts that the Tribunal’s decision was unreasonable, illogical, and unfair. Although not pleaded by way of any amended application, the applicant’s written submissions allege an apprehension of bias on the part of the Tribunal member.

3. A transcript may also have been useful in relation to ground two (“the Tribunal’s questions … were unclear”) and ground three (a breach of s.425 in relation to what is said to have occurred at the hearing).

4. All of the applicant’s complaints rely on certain particulars which, for ease of comprehension, I have presented under the following headings.

The Taiwanese “Citizen” Wife and the Marriage Certificate

1. In his statutory declaration provided by the applicant to the delegate in support of his application for a protection visa (CB 26 to CB 30) the applicant claimed, amongst other things, to have married (for the second time) in September 2002 a woman who: “was a citizen of Taiwan.” (See item 6 at CB 27.) The applicant remained in Taiwan for four years. (See item 7 at CB 27.)

2. The delegate’s decision record made reference to the applicant’s claims and, amongst other things, recorded that: “… he married a Taiwanese citizen” (CB 35.6).

3. The decision record of the earlier constituted Tribunal, which was set aside by order of this Court on 3 April 2008 also referred to: “… he married a Taiwanese citizen” (CB 35.6).

4. During the course of the hearing before the Tribunal on 12 June 2008 the applicant submitted, amongst other documents, a marriage certificate. (Copy at CB 94.) In paragraph 38 (CB 117) of its decision record the Tribunal recorded the following:

   “c. A document entitled The People’s Republic of China Marriage Certificate … [referring to the applicant’s former wife] and noting her citizenship, as ‘China’.”

The Marriage Certificate

1. At the hearing the applicant was questioned by the Tribunal about his claimed marriage to a “Taiwanese citizen”. (See [42] at CB 118.)

2. What follows is the Tribunal’s account of what relevantly occurred at the hearing:

   “42. The Tribunal asked the applicant about his claim of marriage to a Taiwanese citizen. The applicant stated that [the applicant’s former wife] was a citizen of Taiwan of Chinese ethnicity. He confirmed that she was a Taiwanese national who was born in Taiwan. He said she is definitely a Taiwanese national born in Taiwan. The Tribunal referred to a document provided by the applicant in the course of the hearing entitled The People’s Republic of China Marriage Certificate … The Tribunal observed that in the Marriage Certificate it is noted that [the applicant’s former wife’s] citizenship is China and not Taiwan; the Tribunal asked the applicant to explain why that is the case. He said the number referred below suggests that she is Taiwanese. The Tribunal noted that the applicant was referring to ID Certificate number L222514498 (Folio 46). The Tribunal asked the applicant to explain to clarify what he meant. He said at the time she came with a Taiwanese travel document. The applicant was asked to clarify if he knew why in the Marriage Certificate, it is noted that [the applicant’s former wife] is of Chinese citizenship and not Taiwanese. The applicant stated because the Certificate is from the PRC authorities, from the Fuzhou government and this is the sort of certificate that the Fuzhou government provides.

   43. The Tribunal asked the applicant if he was suggesting that the Fuzhou authorities have provided incorrect information in the Certificate and the applicant answered in the affirmative; he said that it would appear that the Fuzhou authorities have provided incorrect information in the Marriage Certificate. The Tribunal pointed out to the applicant that acknowledging that the document contains incorrect information could raise doubts about the authenticity of the document as well as the accuracy of the information contained in the document. The Tribunal expressed concerns that on his own evidence the document contains incorrect information. The Tribunal indicated to the applicant that this could mean that the Tribunal may not accept that the document is authentic or that it contains truthful and/or accurate information, which could raise doubts about the veracity of his claims or his credibility generally. The Tribunal invited him to comment on or respond. He said the marriage certificate can prove the brutal regime of the Communist Party. The Tribunal indicated to the applicant that the Marriage Certificate does not state that [the applicant’s former wife] is a citizen of Taiwan. He said he has photographs that would show her citizenship as Taiwanese (discussed later).

   44. The Tribunal indicated to the applicant that the Tribunal needed to further consider the weight that it would place on the Marriage Certificate and that it would further consider his comments, responses and/or explanations. The Tribunal indicated to the applicant that on its face, the document would appear to be inconsistent with his claims that [the applicant’s former wife] is a national of Taiwan. The Tribunal asked him if he would like to make any further comments and the applicant stated that he had no further comments to make.  

   …

   52. The Tribunal indicated to the applicant that it is possible to obtain forged documents in China. The Tribunal suggested to the applicant that it is possible that the document, Fuqing Municipality Public Security Bureau Security Detention House, Certificate of Being Released From Detention, is not authentic. He said that all the documents that he has provided are true. The Tribunal indicated that it would further consider the document, whether it is authentic and/or whether it contains true or accurate information and the weight that the Tribunal would place on that document. The Tribunal invited him to comment or respond. He said that he had nothing to say.”

3. In relation to the marriage certificate, the Tribunal found ([82] at CB 127):

   “82. The applicant provided a document entitled The People’s Republic of China Marriage Certificate. The Tribunal observes that in the Marriage Certificate it is noted that [the applicant’s former wife’s] citizenship is China and not Taiwan; the Tribunal asked the applicant to explain why that is the case. He said the number L222514498, suggests that she is Taiwanese. The applicant was asked to clarify if he knew why in the Marriage Certificate, it is noted that [the applicant’s former wife] is of Chinese citizenship and not Taiwanese. The applicant stated because the Certificate is from the PRC authorities, from the Fuzhou government and this is the sort of certificate that the Fuzhou government provides. The Tribunal asked the applicant if he was suggesting that the Fuzhou authorities have provided incorrect information in the Certificate and the applicant answered in the affirmative; he said that it would appear that the Fuzhou authorities have provided incorrect information in the Marriage Certificate and the applicant answered in the affirmative; he said that it would appear that the Fuzhou authorities have provided incorrect information in the Marriage Certificate. He said the marriage certificate can prove the brutal regime of the Communist Party. As pointed out to the applicant, acknowledging that the document contains incorrect information, raises doubts about the authenticity of the document, the accuracy of the information contained in the document, the veracity of his claims and his credibility generally. Further, his acknowledgement that the document contains incorrect information, means that other documents that he had provided could contain incorrect information.”

4. In relation to the applicant’s claims, the Tribunal found that he was “not a credible witness” ([87] at CB 129).

5. In part, this conclusion was derived from the Tribunal’s view of the applicant’s evidence relating to the Marriage Certificate and his “Taiwanese” wife (at CB 129):

   1)Paragraph 88:

   “88. The applicant has provided a number of documents in support of his claims, namely, Fuqing Municipality Public Security Bureau, Security Detention House, Certificate of Being Released From Detention, Mutual Agreement on Divorce, The People’s Republic of China Marriage Certificate, Protest Against CPC’s Tyranny! Stop Police Violence!, Fuqing City Hospital Certificate of Death. The Tribunal has noted above the concerns about some of those documents, especially, the applicant’s concession that the Marriage Certificate contains inaccurate information. Given those concerns, the adverse credibility finding, and looking at the evidence cumulatively, the Tribunal is not satisfied that those documents contain truthful and/or accurate information. Accordingly, the Tribunal does not give them weight. The documents do not outweigh the Tribunal’s concerns about this applicant.”

   2)Paragraphs 89 and 90:

   “89. Whilst the Tribunal accepts as plausible that the applicant had worked in Taiwan and that he had been married to a woman who lived in Taiwan, in consideration of the evidence as a whole and given the adverse credibility finding, the Tribunal does not accept that:

   90. His former wife was a Taiwanese citizen, or that he was of any adverse interest to the Chinese authorities as a result of living in Taiwan or being married to a person who lived in Taiwan, or that on 6 March 2007, police went to his home, or that they showed him a search warrant and detention permit and told him that he had been suspected of being involved in ‘anti-government’ movement, or that they took him to the PSB in Fuqing City, or that he was interrogated by the PSB or NSB, or that he discovered the truth while he was interrogated, or that he was suspected of any involvement in sending letters to the 2007 National People’s Congress Taiwan.”

The Police “Raid” of 6 March 2007

1. In his statement in support of his protection visa application the applicant stated (CB 27.6):

   “9. On 6 March 2007, which was the second day of 2007 National People’s Congress held in Beijing, many police suddenly came to my home in the evening. They showed me a search warrant and detention permit and told me that I had been suspected to get involved in ‘anti-government’ movement. They did not allow me to make any explanation but forced me to crouch with two hands around my head. They then searched my home completely. Although they did not find any evidences, they still took me to the Public Security Bureau (‘PSB’) in Fuqing City, where I was interrogated by the police not only from the PSB but also from the National Security Bureau (‘NSB’).”

2. At the hearing with the Tribunal the applicant provided:

   “a. A document entitled Fuqing Municipality Public Security Bureau, Security Detention House, Certificate of Being Released From Detention, dated 31/3/2007 … The document purports that the applicant was detained on 6 March 2007 and that he was released on 31 March 2007.”

   (See [38] at CB 117, and CB 102 to CB 103.)

3. In its report of the hearing the Tribunal relevantly recorded (CB 119 to CB 120):

   “47. The Tribunal asked the applicant about his employment with the Fuyao Group. He said he started working for them in January 2007. He was doing glass modelling. He said he worked for the company until March 2007. He said an incident occurred on 6 March 2007. The Tribunal asked him to clarify and he said it was the day when the CCP had searched his home. He said on 6 March 2007, the CCP was holding the People’s Congress. He said the PRC was interested in him because he had been in Taiwan for almost four years. The Tribunal asked him who went to his home on 6 March 2007. He said six police, one village official and one local PSB. He said in total there were eight individuals who went to his home on 6 March 2007. The Tribunal noted that in the Statutory Declaration that he had provided in support of the application for a protection visa, which the Tribunal considered to be lengthy and comprehensive, there does not appear to be mention of eight people going to his home but rather it is noted that that on 6 March 2007, ‘many police’ went to his home. He said at the time of completing the application, he did not quite state the eight people that he was referring to. The Tribunal asked him why and he said when the document was being prepared he was confused and he did not state that number and the nature of the individuals who went to his home.”

   48. The Tribunal noted at paragraph 9 of the Statutory Declaration, he said ‘many police suddenly came to my home …’ and asked him why in oral evidence he was very specific about who went to his home. He said he wanted to talk to the Tribunal face-to-face. The Tribunal acknowledged that a hearing is indeed an opportunity to provide further information and details to the Tribunal and to elaborate on one’s claims but given that he told the Tribunal that he saw his migration adviser every night for quite some time, it is difficult to understand why those details were not included in the Statutory Declaration. The Tribunal suggested that the fact that those details were not included in the Statutory Declaration could suggest fabrication, raising doubts about the veracity of his claims and credibility generally. The Tribunal invited him to comment or respond. The applicant stated that this was the fact. The Tribunal indicated that it would further consider the matter.

   49. The Tribunal asked the applicant what time on 6 March 2007 the incident took place. He said it happened in the evening at exactly 9.30pm. The Tribunal noted that in the statutory declaration there is no mention of the exact time of 9.30 but that the incident occurred in the evening. The Tribunal asked him why he did not mention 9.30 in the Statutory Declaration. He said when the document was being prepared he was not sure about the time but when he subsequently called his family, they helped him with the time. The Tribunal indicated that the fact that 9.30 was not mentioned in a lengthy and comprehensive document, the Statutory Declaration could suggest fabrication, raising doubts about the veracity of his claims and credibility generally. The Tribunal invited him to comment on or respond, he said the time was correct.”

4. The Tribunal relevantly found, in an element that was part of its adverse credibility finding (CB 125):

   “74. The applicant gave evidence that on 6 March 2007, six police, one village official and one local PSB, went to his home. [I]n the Statutory Declaration that he had provided in support of the application for a protection visa, which the Tribunal considers to be lengthy and comprehensive, there is no mention of eight people going to his home but rather it is noted that that on 6 March 2007, ‘many police’ went to his home. At paragraph 9 of the Statutory Declaration, he said ‘many police suddenly came to my home …’ When [the Tribunal] asked him to explain why in oral evidence he was very specific about who went to his home. He said he wanted to talk to the Tribunal face-to-face. He also said when the document was being prepared he was confused and he did not state that number and the nature of the individuals who went to his home. The Tribunal understands that a hearing is indeed an opportunity to provide further information and details to the Tribunal and to elaborate on one’s claims, but given his evidence that he saw his advisor every night for quite some time, it is difficult to understand why he did not mention in the Statutory Declaration that six police, one village official and one local PSB, went to his home, but rather he makes a vague comment, namely that ‘many police’ went to his home. It is also odd that he would recall the specific details in the course of the hearing on 12 June 2008, when at the time of the Statutory Declaration (17 July 2007), closer to the time of the alleged incident, there are no specific details. The Tribunal is not persuaded by his explanations. The Tribunal is of the view that the fact that those details were not included in the Statutory Declaration, suggests fabrication, raising doubts about the veracity of his claims and credibility generally.

   75. The applicant gave evidence that the incident on 6 March 2007 happened in the evening at exactly 9.30 pm. The Tribunal notes that in the Statutory Declaration there is no mention of the exact time of 9.30 but that the incident occurred in the evening. The Tribunal asked him why he did not mention 9.30 in the Statutory Declaration. He said when the document was being prepared he was not sure about the time but when he subsequently called his family, they helped him with the time. The Tribunal is not persuaded. The Tribunal is of the view that the fact that 9.30 was not mentioned in the lengthy and comprehensive Statutory Declaration, suggests fabrication, raising doubts about the veracity of his claims and credibility generally.”

The Letters Sent to the 2007 National People’s Congress

1. In his statement in support of his application, the applicant relevantly said (at CB 27):

   “10. I eventually knew the truth while I was interrogated by the police at the PSB. 2007 National People’s Congress received some of letters sent from Fujian, urging the PRC authorities to respect basic rights and interests of Taiwan people and to stop military threat against Taiwan and to have equal negotiation with Taiwan government. In order to find who had sent those letters to 2007 National People’s Congress, all people, including me, who had been Taiwan or had some relationship with Taiwan, were regarded as suspects. As a result, I was in troubles, because I used to spend nearly 4 years in Taiwan.”

2. The Tribunal relevantly found (at CB 126):

   “76. The applicant gave evidence that during his detention, he discovered the reasons for his detention. He said he was told that some letters were sent to the Taiwanese authorities about democracy and to get along with Taiwan peacefully. The Tribunal asked him if he knew to where the letters had allegedly been sent. He said they were sent to Taiwan but he did not know to where the letters had been sent, nor did he know how many letters had been sent. The Tribunal notes that at paragraph 10 of his Statutory Declaration, he had claimed that the letters were sent to the 2007 National People’s Congress. When this was put to him, he said he knew that the letters had been sent to the Taiwanese authorities, but not to which organisation. The Tribunal is of the view that the fact that in oral evidence he did not tell the Tribunal that the letters had allegedly been sent to the 2007 National People’s Congress when in writing he did, which the Tribunal considers to be a significant issue, raises doubts about the veracity of his claims and his credibility generally. The Tribunal is not persuaded by his comments that he had previously thought that the Tribunal had asked him about which organisation but the National People’s Congress also received those letters.”

   (See also [50] at CB 120.)

Who Took Mr Li to the Hospital?

1. In his statutory declaration the applicant relevantly said (at CB 28):

   “13 On 31 March 2007, Mr. Li was released by the PSB together with me. He was immediately sent to the hospital by his family. However, it was too late to save Mr. Li’s life, and he died on 2 April 2007!”

2. In its report of the hearing the Tribunal noted (at CB 121):

   “54. The Tribunal asked the applicant about Mr Jia Jian Li. He said he had met him in Taiwan one month after he went to Taiwan. He said Mr Li had returned to China and he was detained as well as the applicant and was released on 31 March 2007. He said Mr Li had suffered from stomach ulcers. He said that he personally sent him to the hospital on 31 March 2007. The Tribunal asked him which hospital and he said to Fuqing City Hospital. The applicant confirmed that he had personally taken Mr Li to the hospital. The Tribunal indicated that at paragraph 13 of his Statutory Declaration, he has claimed that Mr Li had been sent to the hospital by Mr Li’s family, which appears to be inconsistent with the applicant’s evidence. The applicant stated that he had informed Mr Li’s family and went with his family to the hospital. The Tribunal indicated that that [sic] this was not what he had said in writing. The applicant said it was a fact. The Tribunal indicated to the applicant that the inconsistency could suggest fabrication raising doubts about the veracity of his claims and his credibility generally. The Tribunal invited him to comment on or respond. He said that after he was released, he called Mr Li’s family and together they took Mr Li to the hospital. The Tribunal indicted that it would consider the matter further.”

1. The Tribunal relevantly found:

   “77. The applicant gave evidence that he personally sent Mr Li to the hospital on 31 March 2007. The Tribunal asked him which hospital and he said to Fuqing City Hospital. The applicant confirmed that he had personally taken Mr Li to the hospital. The Tribunal notes that at paragraph 13 of his Statutory Declaration, he has claimed that Mr Li had been sent to the hospital by Mr Li’s family, inconsistent with his oral evidence. When this was put to him, he said that he had informed Mr Li’s family and went with his family to the hospital, which is not what he had said in writing. The applicant said it was a fact. He said that after he was released, he called Mr Li’s family and went with his family to the hospital, which is not what he had said in writing. The applicant said it was a fact. He said that after he was released, he called Mr Li’s family and together they took Mr Li to the hospital. The Tribunal is not persuaded. The Tribunal is of the view that the inconsistency suggests fabrication raising doubts about the veracity of his claims and his credibility generally.”

Major Activist

1. In his statutory declaration the applicant relevantly said (at CB 29):

   “… I became a major activist of the protest organised by Ms. Lin not only owing to my own sufferings in the detention centre but mostly based on my political opinions against the Communist dictatorship as well.”

2. In its findings the Tribunal said (at CB 126 to CB 127):

   “79. The Tribunal asked the applicant about his claim that he became a major activist of the protest organised by Ms Lin. The Tribunal asked him what he actually did. He said he drafted pamphlets and Ms Lin had organised a protest against the CCP regime and police violence. The applicant stated that they went to Fuqing National People’s Representative, the People’s Prosecutoriat, the Administrative Bureau, other prosecutorial organisations, the courts and others. The Tribunal asked him about those other organisations to which they allegedly went; he said he could not remember other organisations clearly. He said they went to many government agencies and he could not remember all of them. The Tribunal asked him when exactly he went to those organisations. The applicant did not provide a clear answer; he said they began to organise those protests after Mr Li’s death on 2 April 2007. He was given another opportunity to explain and he still did not; he said that on 10 April 2007 they went to the People’s Representative and later they went to other organisations. Asked further, he eventually said on 11 April 2007, they went to the court and on 12 April 2007 they went to the People’s Prosecutoriat. He said as far as the rest was concerned, he could not remember. The Tribunal notes that it was a task to get the applicant to give some details about a significant claim of him being a major activist. Whilst he eventually gave some dates, overall he could not provide details about when he had protested or gone to those other organisations.”

Questioned “Several Times”

1. In his statement the applicant said (at CB 29):

   “17. On 4 June 2007, it was a very sensitive day in China. Ms. Lin and I selected this day on purpose to organise people to distribute many propaganda materials against the Communist dictatorship both in Fuqing and Fuzhou. It immediately came to particular attention of the PRC authorities. Ms. Lin and I, as well as some of friends, were questioned by the PSB for several times …”

2. The Tribunal found:

   “81. The applicant gave evidence that on 4 June 2007 after he had been distributing pamphlets, the police told him to go to the local PSB. He said he was interrogated by the police but they did not find any evidence against him. The applicant was asked and he confirmed that apart from that occasion and the previous occasion he had not been questioned by the PRC authorities on any other occasion. At paragraph 17 of his statutory declaration, he has claimed that he had been questioned by the PSB ‘several times’. Whilst the Tribunal appreciates that ‘several times’ could simply mean more than once and it could encompass twice, which would be consistent with his oral evidence that he had been questioned on the two occasions. However, the Tribunal is of the view that when this is considered in its context, it appears to be inconsistent with his evidence that he had only been questioned twice; paragraph 17 of his Statutory Declaration begins with a reference to ‘4 June 2007’ and saying ‘several times’ suggest several other times than 4 June 2007.”

Distribution of Pamphlets

1. In his declaration the applicant relevantly said that he had been involved in the distribution of pamphlets critical of the PRC authorities. (See item 17 at CB 29.)

2. The Tribunal relevantly found (at CB 128):

   “85. The Tribunal asked the applicant what they did with the document entitled Protest Against CPC’s Tyranny! Stop Police Violence! He said they distributed the pamphlets containing the same text as the document. The Tribunal asked him to where they distributed the pamphlets. He said they distributed them in Fuqing and Fuzhou. The Tribunal asked him when they delivered the pamphlets. He provided a vague answer; he said after receiving no reply from the government they distributed the pamphlets. The Tribunal asked him to explain again when they distributed the pamphlets. The applicant did not answer the question and again said that it was after visiting government agencies. The Tribunal is of the view that the lack of details about when they distributed the pamphlets, raises doubts about the veracity of his claims and his credibility generally.”

Departing China

1. The Tribunal relevantly found:

   “86. The Tribunal asked the applicant if he had any difficulties in departing China and or in obtaining his travel documents. He said he left legally and that his passport was in his own name (issued 20/6/06). The Tribunal indicated to the applicant that those of any adverse interest to the Chinese authorities generally have difficulties in leaving China and/or obtaining travel documents. The applicant stated that he had obtained documents through friends who had bribed PRC officials. The Tribunal notes that the claim of the bribery of the officials is a claim that he did not make in [the] Statutory Declaration, which the Tribunal considers to be a very serious claim. The Tribunal is of the view that the fact that the claim was not made in the Statutory Declaration, raises doubts about the veracity of his claims and credibility generally. The Tribunal is not convinced by his comment that he had preferred to talk to the Tribunal face-to-face.”

The Tribunal’s Adverse Credibility Finding

1. The Tribunal’s rejection of the credibility of the applicant’s factual account of what he said had occurred in China was not based on any one of the above items. Rather, the Tribunal found that, when viewed as a whole, and when its concerns were viewed “cumulatively”, it was not satisfied that the applicant was a credible witness. (See [87] at CB 129.) It rejected his core factual claims to fear harm on this basis. (See [90] to [92] at CB 129.)

The Applicant’s Complaints in His Submissions

1. The applicant makes two submissions in relation to the above. First, he takes issue with the Tribunal’s report, particularly those parts emphasised above. Second, he provides an explanation now as to why the certificate showed his wife’s “citizenship” as “China” instead of “Taiwan”.

2. I am of the view that this explanation suggested itself to the applicant after remarks made at the hearing before the Court (on 5 May 2009) as to the Tribunal’s approach to the question as to why the marriage certificate made reference to the wife’s “citizenship” as “China”, rather than “Taiwan”.

3. In any event, the certificate was clearly issued by local authorities in the People’s Republic of China. (See CB 94.) It must be said that, at first glance, it is of some surprise that a Tribunal member would not know that which is a matter of “public record”. Namely, that the government of China does not recognise Taiwan as a separate country. It is regarded as a province of China, not as a separate country. Therefore, any public authority issuing any document in China would not refer to “Taiwanese” citizenship, but would record anyone from Taiwan as being of Chinese citizenship.

4. However, this appears to have also escaped the attention of the applicant’s adviser with whose assistance the applicant first made reference to the “Taiwanese citizenship” of his wife, the delegate who appears to have left the applicant’s claim in this regard as unremarked, and, of course, until now, the applicant himself.

5. The applicant’s link with Taiwan was important because it explained why the applicant was regarded as a suspect three years later, as having been involved in sending letters (to a national congress), critical of the Chinese government, and in support of the people of Taiwan. (See items 9 to 10 at CB 27.)

6. The Tribunal’s questioning of the applicant about the marriage certificate, therefore, must be seen in light of its seeking to explore with him what was said by him in his statutory declaration. A plain reading of its account of what occurred at the hearing supports this view. (See [41] – the reference to the statutory declaration, and then [42] – the reference to the certificate.)

7. This is further supported by how the Tribunal commenced its specific questioning about the certificate. Paragraph 42 commences with: “The Tribunal asked the applicant about his claim of marriage to a Taiwanese citizen …”

8. Plainly, this was relevant to the basis for his factual account as to the harm he subsequently suffered in coming under suspicion by the Chinese authorities. That is, his “connection” with Taiwan.

9. The applicant is then reported to have responded with:

   “… that [the applicant’s former wife] was a citizen of Taiwan of Chinese ethnicity. He confirmed that she was a Taiwanese national who was born in Taiwan. He said she is definitely a Taiwanese national who was born in Taiwan …”

10. It was at that point that the Tribunal referred the applicant to the marriage certificate and noted with him that his former wife’s: “… citizenship is China and not Taiwan …” The Tribunal’s request for an explanation is clearly set out in the context of what is reported to have been his adamant declaration that she was of Taiwanese, and not Chinese, citizenship.

11. It may be that one of the applicant’s explanations (“The applicant stated because the Certificate is from the PRC authorities, from the Fuzhou government and this is the sort of certificate that the Fuzhou government provides”, at [42]) was an attempt by the applicant to explain that the Chinese authorities would refer to anyone from Taiwan as a Chinese citizen. However, this is quickly dispelled when the applicant is then reported to have agreed that the Fuzhou authorities “provided incorrect information” in this regard. (See [43] at CB 118.8.)

12. The applicant’s written submissions now raise the additional complaint that the Tribunal’s decision reveals an apprehension of bias because the Tribunal’s findings in relation to the marriage certificate ([82]) were based on a misstatement of the applicant’s evidence in this regard, and the Tribunal’s lack of “basic knowledge” about how the PRC authorities regard Taiwan. This is to be seen in addition to the complaint that the Tribunal relied on matters that were “trivial” or “minor” in forming an adverse view of the applicant’s credibility.

13. A number of matters require further attention.

14. First, the applicant was assisted throughout the processing of the application for a protection visa, and throughout the period of the review, by a “Mr Harry Huang”, a registered migration agent with “Pricilla International Co. Pty Ltd”, a migration agency. (See CB 21.4, CB 23, CB 43 and CB 111.2.)

15. Yet even with the assistance of a migration agent, the applicant made no attempt to alter his initial reference to his former wife as a “Taiwanese”, rather than a “Chinese” citizen in anything that he put to the Tribunal.

16. The applicant was unrepresented before the Court. While his affidavit filed in the Registry at the time of the making of his application (concerning the Tribunal’s decision) bears the stamp of “Harry Huang” as the person before whom the affidavit was made (a stamp which features throughout the relevant parts of the Court Book), it cannot be said that Mr Huang has continued to assist the applicant with his application to this Court, or with his subsequent submissions. I make no finding of this nature.

17. But what can be said is that the applicant, who was represented by a migration agent at the relevant times initially raised the “fact” that his former wife was a “citizen of Taiwan”. He continued to assert this throughout the process of the review.

18. Given that the issue was raised at the hearing, the applicant did not seek to correct what he had previously put. That is, that the former wife was a Chinese citizen, not a Taiwanese citizen.

19. Second, in his written submissions now, the applicant complains that the Tribunal did “not have the most basic knowledge that the PRC authorities” do not regard Taiwan as independent. Therefore, any document issued by any Chinese authority would not refer to anyone as being “a Taiwan citizen”. This was never put to the Tribunal.

20. Third, the applicant’s submissions assert the following as to what the applicant says relevantly occurred at the hearing with the Tribunal:

    “The Tribunal’s member (T)        When I came in, you gave me a document … a translation of a Marriage Certificate …

    …

    This document is your marriage certificate to [the applicant’s former wife] as you can see.

    Interpreter (I)  Yes

    TOk. It says (her) citizenship is China, and it doesn’t say Taiwan

    IThat’s because when she applied in China, she needs … her nationality or her citizenship should be China, below that, there is her Taiwan ID number …”

21. This is said to relate, in particular, to paragraph 82 of the Tribunal’s findings. (See as extracted at [44] above.)

22. The applicant complains that the Tribunal “obviously misstated” his evidence. He claims that what he told the Tribunal was that: “her Taiwan ID number has showed her ‘citizenship’ of Taiwan.” Yet he now submits that the Tribunal has reported that he said “the number L222514498 would suggest that my ex-wife … is Taiwanese.”

23. I understood the applicant’s submissions in this regard to be that there is an apprehension of bias in relation to the Tribunal’s decision to be linked to the complaint made in the application to the Court at ground one (“… the Tribunal failed to bring an independent mind …”). (See further below.)

24. The applicant’s written submissions (at [2]) assert that the Tribunal’s reliance on minor and irrelevant discrepancies between “his written materials” and his evidence at the hearing also, in effect, would lead to a “reasonable observer” apprehending that it was biased.

25. The applicant gives, as an example, the following exchange that he says occurred at the hearing with the Tribunal:

    “TSo … who went to your home on 6 March 2007?

    I6 police, 1 village official, 1 police from the local PSB, altogether 8.”

26. The applicant refers to the Tribunal’s relevant finding at paragraph 74 to argue that the Tribunal relied on minor discrepancies in his evidence to find against him:

    “74 The applicant gave evidence that on 6 March 2007, six police, one village official and one local PSB, went to his home. [I]n the Statutory Declaration that he had provided in support of the application for a protection visa, which the Tribunal considers to be lengthy and comprehensive, there is no mention of eight people going to his home but rather it is noted that on 6 March 2007, ‘many police’ went to his home. At paragraph 9 of the Statutory Declaration, he said ‘many police suddenly came to my home …’”

27. I understood the applicant’s submission to directly link this to ground one of his application. This also is considered below.

Ground One

1. This ground both as “pleaded”, and as understood in light of the applicant’s subsequent written submissions, contains a number of interwoven complaints that are probably best dealt with under the following headings.

Ground One – The Tribunal’s Testing of the Evidence

1. The applicant complains that the Tribunal made findings that were “overly exact or fastidious”, and that it “cavilled” at the applicant’s “claims or evidences”. I understood the applicant’s complaint to be that the matters that the Tribunal relied on to form its adverse view as to his credibility and to reject his claims were of such a nature and character that it was not open to the Tribunal to rely on these matters in coming to its adverse conclusion.

2. The applicant provides particulars to this in that the Tribunal took issue with discrepancies between the detail given in oral evidence and the lack of detail in his statutory declaration.

3. If the applicant means to complain that the Tribunal did not accept the factual basis for his claims, I begin by noting that the relevant statutory regime applicable to applications of this type, that is, an application for a protection visa, is to be found in ss.65 and 36(2) of the Act. This, in effect, requires the Tribunal to reach the requisite level of satisfaction that the applicant meets the criteria for the grant of a protection visa.

4. In substance, this means that the Tribunal needs to be satisfied that the applicant meets the definition of “refugee” as set out in Article 1A(2) of the UN Refugee’s Convention. If the Tribunal is unable to reach this requisite level of satisfaction then the protection visa must be refused. (See SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225. I note also similarly, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.)

5. It is also relevant to note that the Tribunal is not required to accept uncritically any, or indeed all, of the applicant’s claims or assertions put before it (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437).

6. Further, the Tribunal’s role is that of the finder of fact “par excellence” (See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J. at [67].) Plainly, the Tribunal found that the applicant lacked credibility. This finding, and the findings underpinning it, were findings open on the material before it.

7. Merely because an applicant (such as the one before the Court now) disagrees with the Tribunal’s factual conclusions (as appears to be what, in part, the applicant is seeking to put before this Court) and even disagrees with the Tribunal’s ultimate conclusion, does not of itself amount to an error of law (Minister for Immigration and Ethnic Affairs v Wu Shan Liang  [1996] HCA 6; (1996) 185 CLR 259).

8. I note also, that while the Tribunal carefully identified the parts of the applicant’s evidence that it had difficulties with, it also stated that it made its findings based on a “consideration of the evidence as a whole” (CB 130.3, CB 130.4, CB 130.5).

9. It is the case that, in part, the Tribunal’s account of the hearing, and its subsequent findings, do reveal a partial reliance on what on their own could be described as “minor”, or “trivial”, matters. The applicant’s example concerning how many persons, and who were said to have gone to the applicant’s home on 6 March 2007 (see [88] above), is a good example. This difference, in context, between “many police” (as in the applicant’s statutory declaration), and “six police, one village official and one local PSB” is, in substance, negligible.

10. If this was an example of the totality of the Tribunal’s approach and the matters it relied on, then jurisdictional error may well have been discerned. (See, for example, SZMDS v Minister for Immigration and Citizenship [2009] FCA 210.)

1. The issue about the marriage certificate is somewhat different, in that it was the applicant himself who raised the issue of his former wife being a “Taiwanese citizen”. In these circumstances, it was not a trivial or minor matter for the Tribunal to test this at the hearing, given the importance of the “Taiwanese connection” to his claims. That the Tribunal relied on his subsequent evidence that the local Chinese authorities “provided incorrect information” to, in part, find against the applicant, was open to the Tribunal. That evidence by the applicant could not be seen to be “minor” or “trivial”.

2. Importantly, although the applicant disputes other parts of the Tribunal’s account of what was said to have occurred at the hearing, there is no complaint about the Tribunal’s report that he affirmed that the local authorities had made a mistake. Nor, in that context, does the applicant’s submission now that he said that it was the ID number “only” that identified her as Taiwanese assist him.

3. On balance, and on a fair reading of the Tribunal’s reasoning, I agree with the Minister’s submissions that the Tribunal’s analysis and its findings extended beyond the matters of the number of people who came to his home and even the matter of his former wife’s ID number. Matters upon which, on the material before the Court, the Tribunal was entitled to test with the applicant at the hearing.

4. But even further, what tips the balance, in my view, is that the Tribunal’s ultimate conclusion was based not on any one item of evidence, but was the accretion of the Tribunal’s reaction to the applicant’s “evidence as a whole” ([70] at CB 125). In this context, that some of the matters of concern may have been trivial does not detract from the Tribunal’s ultimate evaluation of the totality of the applicant’s evidence. This is particularly so, given that a large part of the Tribunal’s concern was the lack of detail in the applicant’s statutory declaration (see [58] at CB 122), a declaration that was drafted at a time when the applicant was assisted by a registered migration agent.

5. On their own, the description of how many people conducted the raid of 6 March 2007, and how many times the applicant was questioned by the security authorities, and perhaps even who took Mr Li to hospital, do not appear, on their own, to be such as to be probative of an adverse credibility finding.

6. But the matters concerning the letters sent to the 2007 National People’s Congress, whether he became a major activist, his inability to provide a satisfactory account as to the distribution of pamphlets, his ability to depart China unhindered and his failure to properly explain the reference to the Taiwanese “citizenship” of his wife, were all matters that rise above the “trivial” or “minor”. When all are taken together, as the Tribunal did, they do provide a probative basis for its adverse credibility finding.

Ground One – The Apprehension of Bias

1. If in the application the applicant means to assert that the Tribunal was excessively pedantic in the way that it addressed his claims, to the point that there may be an apprehension of bias (see the application at the third page: “Obviously, the Tribunal failed to bring an open mind to look at all of my claims or evidences properly and fairly”), then this is confirmed in his subsequent written submissions where he asserts apprehended bias.

2. I note first that it is the case that such complaints must be: “distinctly made and clearly proven” (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22]). (See also Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69].)

3. In any event, on what is before the Court, and with reference to relevant authorities (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Jia, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102), I cannot see that any such complaint can be made out.

4. If the applicant takes issue with the Tribunal’s testing of his evidence, and its adverse credibility finding to allege apprehended bias on its part, I refer to what was said in by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 at [27] to [28]:

   “[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the Tribunal, proceedings are held in private.

   [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”

5. Further, noting, in particular, what was said at [30] to [32]:

   “[30] Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

   [31] Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.

   [32] In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the Tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the male prosecutor. And because the female prosecutor’s application stood or fell with his, a fair-minded lay observer or a properly informed lay person might, in our view, form the same view in her case.”

6. During the course of the hearing a recent Judgment of this Court (SZMOE v Minister for Immigration & Anor [2009] FMCA 116, per Smith FM – “SZMOE”) was raised as an example of where apprehended bias was found on the part of the Tribunal, where the Tribunal member: “… used the hearing only to collect a series of perceived negative points, many of them obvious, upon which to justify a predetermined decision” (SZMOE at [6]).

7. In large part, this was one reason that caused me to give the applicant an additional month to obtain a transcript of the whole of the hearing before the Tribunal.

8. In SZMOE there was a full transcript of the hearing before the Court. I agree with the Minister that this enabled the Court to analyse the relevant transcript in detail. His Honour’s critical findings (see SZMOE at [18], [21], [23] to [30]) which led to the findings of apprehended bias (SZMOE at [41]) were all derived from, and depended upon, the transcript.

9. In the current case, despite opportunity, the applicant has not provided any transcript.

10. It is not impossible, but it is a rare case that the complaint made by the applicant now can be established without a transcript.

11. On what is before the Court, the matters described as “trivial” or “minor”, without anything else, are not sufficient to establish an apprehension of bias, let alone actual bias.

12. As already referred to above (see [106] to [107]) there were sufficient findings based on the material before the Tribunal to ground the adverse credibility finding. Findings that could not be said to be “trivial” or “minor”.

13. What must also be borne in mind is the nature and particular characteristics of the ground on which the applicant seeks to rely.

14. In NADH  of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 Allsop J (with whom Moore J generally agreed with the reasoning at [1]) said at paragraphs 20 to 21:

    “20. At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.

    21 The enquiry is not directed to the personal thought processes of the decision-maker. It is directed to his or her conduct ‘objectified’ through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia at 564; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493. It goes without saying that a conclusion, from all the materials, including the decision and the reasons for decision, that a fair-minded informed observer would reasonably apprehend a lack of impartiality in the sense discussed, does not carry with it the conclusion that there was a lack of impartiality.”

15. The issue in the current case, therefore, is whether the applicant’s complaint is meaningful as it is said to arise from how the Tribunal dealt with the material before it in its reasons for decision. The question is whether on a reading of this material the well informed lay observer would reasonably apprehend that the Tribunal was predisposed to an adverse result, without properly evaluating the material before it.

16. While some matters may give rise for an initial cause of concern (the raid of 6 March 2007, who took Mr Li to hospital, and how many times the applicant was questioned by security officials) there is, in my view, insufficient evidence before the Court now in relation to the Tribunal’s conduct such that the informed lay observer could reasonably apprehend a closed mind.

17. The Tribunal’s account of the hearing reveals that the applicant was given the opportunity to explain his claims. His explanations as to the stated nationality of his wife, his role as a major activist and distributor of pamphlets, the letters sent to the 2007 National People’s congress and his inability to satisfactorily explain how he left China unhindered in light of his claimed difficulties with the authorities were all matters that, without anything else, reveal that the Tribunal reached its conclusion on the material before it in such a way that the well informed lay observer could not reasonably apprehend a mind predisposed to a particular outcome.

Ground One – Irrationality, Illogicality, Unreasonableness

1. In ground one of the application, the applicant also asserts that the Tribunal’s findings were “unreasonable, illogical and unfair.”

2. Even if unreasonableness were to be seen as an applicable ground of review to the applicant’s case, and even to the extent that illogicality may be said to be available in some circumstances (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [9] per Gleeson CJ), there is nothing in the analysis put forward by the Tribunal in its decision record to support any such claims.

3. The Tribunal’s decision record plainly does not reveal any support for any claim of “unreasonableness” or illogicality, in the sense that it lacked reason. Nor, for that matter, “unreasonableness” in the “Wednesbury sense” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223). It was not so unreasonable that no reasonable decision maker could come to the conclusion that it did.

4. The Tribunal found that the applicant lacked credibility. This finding was based on the following:

   1)The lack of detail in his statutory declaration submitted to the delegate (one that the Tribunal considered to be “lengthy and comprehensive” – CB 126.2) as compared with his specific evidence given at the Tribunal hearing (see CB 125.6 to CB 126.2, CB 126.7, CB 127.3).

   2)His failure to include certain details while giving oral evidence, that had been provided in his statutory declaration (CB 126.2 to CB 126.5, CB 128.8 to CB 128.10).

   3)Inconsistencies between the applicant’s evidence in the statutory declaration and his oral evidence before it (CB 126.5 to CB 126.7, CB 127.5 to CB 127.8).

   4)General lack of detail provided in relation to a significant parts of his claims (CB 127.2, CB 128.7).

   5)His acknowledgment that there was incorrect information contained in one of the documents he submitted (CB 128.1).

   6)The implausibility of a certain document having been drafted by the applicant (CB 128.4).

5. While some of this may indeed have been based on what may be described as “minor”, a large part was not. When each of the matters were viewed cumulatively, this did provide a rational basis for the Tribunal’s adverse credibility finding

6. The Tribunal noted that much of the applicant’s evidence led it to “doubt the veracity of his claims and credibility generally”, and that some of it suggested that there had been an element of “fabrication” involved (CB 126.7, CB 127.5), and even that he was “tailoring his oral evidence to fit” certain information in a document (CB 126.8).

7. Further, in light of its comprehensive rejection of the applicant’s credibility, and an admission by the applicant that one of the documents contained incorrect information, the Tribunal found that the evidentiary documents submitted by the applicant at hearing did not “contain truthful and/or accurate information” and it therefore did “not give them weight” (CB 129).

8. This, combined with the applicant’s admission that an evidentiary document contained inaccurate information (the certificate), leading it to give “no weight” to the other evidentiary documents, also provided a basis for comprehensively rejecting all of applicant’s claims. There was nothing irrational or illogical about the way in which the Tribunal made its findings in this regard.  

9. This complaint also does not succeed.

Ground One – Unfairness

1. In ground one the applicant states that the Tribunal’s findings were “unfair”.

2. If it is that he is simply aggrieved by the outcome, then this amounts to a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

3. This Court does not have jurisdiction to determine whether the Tribunal’s decision was “fair”. The Tribunal is required to provide fairness in the procedures that it employs and applies. (See further below.) But as to the outcome, it is, as the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) at [25] that procedural fairness requires a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36 per Brennan J).

4. As I have already noted above, on what is before the Court, the Tribunal’s findings were findings of fact within jurisdiction. These were findings of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67], per McHugh J). The Tribunal’s reasons for its adverse credibility finding were open to it on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558 to 559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ).

Ground two Section 425: Failure to Ensure that the Applicant Understood Why it Was Relevant to the Review

1. In ground two of the application, the applicant complains that the Tribunal’s questioning of him at the hearing was “unclear”, and that it caused him to be “confused”.

2. The particulars to this complaint point to the Tribunal’s questioning of the applicant in relation to his claim that he only found out that the authorities suspected him of writing letters about Taiwanese rights when he was detained. Particularly, in relation to what he said orally at the hearing (“… He said he was told that some letters were sent to the Taiwanese authorities about democracy and to get along with Taiwan peacefully …”), and what he had put in his statutory declaration before the delegate (“The Tribunal notes that at paragraph 10 of his Statutory Declaration, he had claimed that the letters were sent to the 2007 National People’s Congress. When this was put to him, he said he knew that the letters had been sent to the Taiwanese authorities, but not to which organisation …”). (The extracts are provided at page 4 of the application. See also CB 126.4.)

3. Further to this, in the particulars to ground two, the applicant also “submits” that the Tribunal was: “not persuaded by his comments that he had previously thought that the Tribunal had asked me about which organisation but the National People’s Congress also received those letters.”

4. If the applicant complains that he was denied a fair hearing because he did not understand the relevant question, I note that the Tribunal’s decision record is the only account of what occurred at the hearing before the Court. The decision record is unchallenged by evidence to the contrary. There is nothing to show that the applicant indicated to the Tribunal that he did not understand the question being asked of him, nor that the Tribunal asked an incomprehensible question.

5. In the absence of any evidence to the contrary (with reference, in particular, to NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241), the extract provided by the applicant in the application does not reveal, on its own, that the applicant was denied the opportunity of a fair hearing before the Tribunal.

1. With respect to the Tribunal not being “persuaded” by his explanation for the discrepancy between what he said in oral evidence and what he said in his statutory declaration about where the relevant letter had been sent, I note again that it is for the applicant to present his case to the Tribunal and for the Tribunal to reach (or to not reach) a state of satisfaction such that the applicant is owed protection obligation by Australia. In doing so, as I have already stated, the Tribunal need not uncritically accept any, or indeed all, of the applicant’s claims.

2. In short, the Tribunal was entitled to remain unpersuaded by the applicant’s explanation for what it considered to be something that “raised doubts about the veracity of his claims and his credibility generally.”

Ground Three – Section 425: No Real Opportunity to Present Evidence

1. In ground three to the application, the applicant claims that the Tribunal: “failed to comply with its obligations under s.425 of the Act.” The particulars in relation to this complaint state that: “the Tribunal actually denied my right to give any oral evidences in support of my claims; and the Tribunal failed to consider any of arguments against the issues under review.” (See page 4 of the application.)

2. The Tribunal is required pursuant to s.425 (bearing in mind what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152) to ensure that the issues which are determinative of the review, not arising from the delegate’s decision, must be put to the applicant at the hearing, such as to accord him procedural fairness.

3. In my view, the Tribunal discussed each element of the determinative issue at the hearing with the applicant.

4. First, I should note that despite being given the opportunity, the applicant has not put any evidence before the Court to challenge, or contradict, the Tribunal’s account of what occurred at the hearing.

5. Second, as was said in  SZBEL (at [35]): “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.”

6. I note also what was relevantly set out in SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 (“SZHBX”) per Edmonds J at [13] to [14], and SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 per Bennet J at [16] (“where the Tribunal made it clear that it was ‘starting afresh’ the appellant could not have assumed that the reasons given by the delegate would identify for her the issues that arose in relation to that decision because she was not aware of the content of that decision”).

7. SZBEL requires that, pursuant to s.425 of the Act, the Tribunal disclose to an applicant any: “additional issues which were not live issues in the delegate’s decision or otherwise made known to the applicant as being in issue.” (See SZHBX at [14].)

8. In the current case, clearly, the determinative issue was the Tribunal’s view that the applicant was not a “witness of credit”, and that the documents he had provided as evidence in support of his claims were not authentic. 

9. In my view, the Tribunal did give the applicant sufficient opportunity to give evidence and make submissions about what turned out to be “the determinative issue arising in relation to the decision under review”. (See SZBEL at [44].) The Tribunal’s unchallenged (by any evidence to the contrary) account of what occurred at the hearing reveals that the Tribunal questioned the applicant about his account of relevant events in China and plainly asked him to expand on, and clarify, his evidence.

10. I note what was said in  SZBEL (at [48]):

    “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.”

11. What is required is that (SZBEL at [47]):

    “[T]he 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. But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”

12. (See also Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 at [11].)

13. In the current case the Tribunal did give the applicant the opportunity to address the basis, and the substratum of facts in support, of his claims. It did give him the opportunity to expand on those parts of his claims which were open to doubt.

14. Further, it sufficiently indicated its concerns about his evidence and gave him the opportunity to explain the substratum of facts that constituted his claims during the course of the hearing.

15. In particular, and for example:

    1)At CB 118.8 to CB 118.10:

    “43. … The Tribunal pointed out to the applicant that acknowledging that the document contains incorrect information could raise doubts about the authenticity of the documents as well as the accuracy of the information contained in the document … The Tribunal indicated to the applicant that this could mean that the Tribunal may not accept that the document is authentic or that it contains truthful and/or accurate information, which could raise doubts about the veracity of his claims or his credibility generally.”

    2)At CB 119.3:

    “44. … The Tribunal indicated to the applicant that on its face, the document would appear to be inconsistent with his claims that [the applicant’s former wife] is a national of Taiwan.”

    3)At CB 120:

    “48. … The Tribunal suggested that the fact that those details were not included in the Statutory Declaration could suggest fabrication, rasing doubts about the veracity of his claims and credibility generally …”

16. The Tribunal’s unchallenged account of what occurred at the hearing reveals that the applicant was given the opportunity to address the factual basis of his claim to fear harm in China as it was said to arise from his fear of harm from the PSB, its suspicions of him having written letters in support of Taiwanese rights, his subsequent detention and alleged “antigovernment” activities. The Tribunal’s questioning was certainly directed to the substratum of facts underpinning the applicant’s claims.

17. A plain reading of this account reveals that the Tribunal “sufficiently indicated” (SZBEL at [47]) the matters that were at issue. Namely, its concerns regarding his credibility, which were based on the various discrepancies between the detail given at the oral hearing before it, and that given in his statutory declaration, and the authenticity of the evidentiary documents provided by the applicant at hearing (see CB 118.9 to CB 118.10), leading it to reject all of the applicant’s claims. The Tribunal, at various times, told the applicant that certain parts of his evidence: “could raise doubts about the veracity of his claims and his credibility generally” (see CB 122.1, CB 122.9, CB 123.3, CB 124.1, CB 124.4, CB 124.5).

18. With SZBEL in mind, I note that the Tribunal is not required to give a running commentary about what it thinks about the evidence before it. (See SZBEL, particularly at [48].)

19. Further, that the Tribunal’s record of what occurred at the hearing demonstrates that the applicant must have known that “everything was in issue.” That is, with reference to SZBEL, the applicant would have been aware that everything he said was being called into question by the Tribunal.

20. I also note, as pointed out in the Minister’s submissions, that the Tribunal gave the applicant an opportunity to put on further written submissions in relation to anything raised at the hearing, and that the applicant did not take up this opportunity (CB 124.9).

21. I cannot see that any such complaint can succeed.

Ground four – Section 424A

1. In ground four of the application, the applicant asserts that the Tribunal did not “comply with its obligation under s.424A(1) of the Act.”

2. The particulars to this refer to “some of information” that the Tribunal considered, and provides the example of how the Tribunal found, and dealt with, the apparent inconsistency between the applicant’s claims to fear harm from the Chinese authorities, and the fact that the applicant was able to depart China on his own passport.

3. If, by this example, the applicant is referring to independent country information that the Tribunal may have considered in relation to the ability of persons to depart China on their own passport in circumstances where they are of interest to the Chinese authorities, such independent country information relied on by the Tribunal comes within the exception contained in s.424A(3)(a) of the Act from the obligation in s.424A(1) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] to [14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).

4. Further, the view that the Tribunal took of the inconsistencies it found is not “information” such as to enliven s.424A(1). I note that in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (at [18]) that for the purposes of s.424A (with reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 206 ALR 471) 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.’”

5. Further:

   “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.”

6. Without particularity, the applicant has submitted that the Tribunal should have put to him “some of information”. I note for the sake of completeness that the following exceptions apply to information:

   1)Information contained in the applicants’ protection visa application falls within the exceptions contained in sub-ss.424A(3)(b) and (ba) of the Act (SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751 at [22], SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693 at [15]).

   2)The information provided by the applicant himself for the purposes of the review (for example, information provided at the hearing) falls within the exception contained in s.424A(3)(b).

Conclusion

1. I cannot discern jurisdictional error as it is said to arise from the stated grounds, nor otherwise. For the applicant to succeed before the Court such error would need to be found. The application is therefore dismissed.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  20 October 2009