SZMEW v Minister for Immigration
[2008] FMCA 1237
•27 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMEW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1237 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
| Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZMEW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1065 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2008 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1065 of 2008
| SZMEW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 1 April 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People's Republic of China, arrived in Australia in September 2007 and applied for a protection visa. In support of his protection visa application he provided the Department with a statutory declaration. After describing his background he claimed that a named colleague had been killed on a work site in Beijing in the course of his employment. The applicant claimed that he pressed the employer for a thorough investigation into the circumstances of his colleague's death and that he was subsequently offered a bonus, which he was told was money as a “Fee for shutting the mouth” to stop him pursuing the death of his colleague. He claimed that he refused to accept this money and insisted the authorities should conduct a thorough investigation, that he approached the project management office and the labour contractor many times from December 2006 to January 2007 and visited a few solicitor’s firms for legal help, but did not find help.
The applicant claimed that on 9 January 2007 he was unexpectedly arrested by the police and alleged to have incited an anti-government movement in order to destroy a key project for the 2008 Olympic Games and that he was detained until 31 January 2007. He claimed that apart from an anonymous letter he was not shown evidence against him, but was interrogated many times by the PSB. He claimed that during every interrogation he was mistreated and tortured.
The applicant claimed that his friend bribed police, managers and the labour contractor and that he signed a confession about his anti-government movement and promised to return to his hometown and not to pursue enquiries about the death of his colleague. He returned home. He claimed that he gave some money to the parents of his colleague, that he felt under pressure and unwell. His wife obtained a passport for him in April 2007.
However the applicant claimed that he did not forget his colleague's death and that in June 2007 (after he recovered from his illness) he returned to Beijing and drafted petitions against the Communist dictatorship which he distributed on construction sites in Beijing with the assistance of a named friend and others. He claimed the petitions called on construction labourers to strive for basic human rights and protest against the dictatorship, but that his friend and some of the labourers were subject to investigations in relation to these petitions, although he had not been discovered. He returned to his home town in August 2007 and his wife obtained a visa for him and arranged for him to leave China with the assistance of a friend in the PSB.
The applicant claimed that some ten days after he left China his friend was discovered by the PRC authorities and arrested and that since then the applicant had been targeted by the authorities. His wife, family members and friends had been implicated and questioned and his house searched. On that basis he claimed to fear persecution should he return to China.
The applicant was invited to and attended an interview with the Departmental delegate. The delegate was not satisfied that the applicant had a well-founded fear of persecution on the basis of his claimed political opinion and refused his application.
The applicant sought review by the Tribunal by application lodged on 14 December 2007. The applicant was invited to and attended a Tribunal hearing. The only evidence before the Court of what occurred in that hearing is the Tribunal reasons for decision.
After the hearing the Tribunal wrote to the applicant care of his authorised recipient under s.424A of the Migration Act1958 (Cth) inviting him to comment on information, including a number of listed inconsistencies in the claims that he had made at various times in his statutory declaration, in the Department interview and in the Tribunal hearing.
The applicant responded to the s.424A letter by a statutory declaration of 26 February 2008.
In its reasons for decision the Tribunal outlined the claims made by the applicant at various times. It set out what occurred in the Tribunal hearing, including detailing instances in which the Tribunal had asked the applicant for further details of his claims and also elaboration of his claims. It recorded particular inconsistencies that it put to the applicant in the course of the hearing, his responses in that respect and its further requests for clarification. It also set out the content of the s.424A letter and the response.
In its findings and reasons the Tribunal summarised the claims made by the applicant on the basis of his political opinion in his protection visa application, as set out above. The Tribunal found that the applicant was a citizen of the People's Republic of China and that his name and date of birth were as claimed. However for reasons which it gave, because of significant inconsistencies between his evidence given at particular times and because the Tribunal did not accept the various explanations he gave for the inconsistencies, the Tribunal did not accept any of the applicant's other claims as it did not accept he was a witness of truth.
Thus the Tribunal did not accept as true that the applicant pursued contractors or management to find out the truth about the death of his colleague. Nor did it accept that, as the applicant had claimed at one point, he reported or attempted to report the accident to the police, that he was arrested, detained, tortured or that bribes were paid to obtain his release. It did not accept that he suffered injury or illness as a result of the claimed detention or that after recovering he returned to Beijing and distributed petitions protesting against the government. Nor did the Tribunal accept that the applicant or his wife had to pay extra money to obtain a visa and passport or that he left China because he had been persecuted. Hence the Tribunal did not accept that he could not, or would not return to China because he feared persecution there now or in the reasonably foreseeable future due to his political activities and political opinion.
It rejected his claim that he had been arrested and detained in January 2007, interrogated and tortured by the PSB and tortured by other inmates, because it did not accept he was witness of truth because of significant inconsistencies. It gave examples of the inconsistencies, the applicant's explanations and its view of such inconsistencies and explanations. For example it had regard to inconsistencies in his evidence in relation to his initial claim that after the death of his colleague (who he subsequently explained was a relative), he had been obliged to find out the truth about the death for the family and obtain reasonable compensation and that he had approached management, the labour contractor and solicitors to seek advice.
The Tribunal also had regard to the fact that at the Departmental interview the applicant stated that he did not report the accident to the local authorities because they would have threatened and arrested him and sided with the contractors, but that at the Tribunal hearing he had claimed not only that he complained to the management subcontractor and saw lawyers, but also that he went to the local authorities and went to the police station. The Tribunal had regard to his explanation for not mentioning this before and his explanation for the inconsistency that he went to the local police station and was told that he had to have a certificate issued and could not obtain it. It found this explanation was not credible.
The Tribunal referred to the fact that it had put this issue to the applicant in the s.424A letter and to his response that the police looked down on him as a labourer from the countryside who was required to provide what in effect amounted to an official reference from the relevant authorities which it would be impossible for him to obtain. This explanation had not been mentioned at the Tribunal hearing. The Tribunal found the inconsistency about whether the applicant had been to the authorities to be significant and did not accept his explanation for omitting it from his claims to the Department. It found his explanations to be implausible for the reasons which it gave. It did not accept his explanations or claims because he had given inconsistent evidence in his various accounts and found that he was not a credible witness and that his explanations for the inconsistencies were not credible.
Similarly, the Tribunal also had regard to a number of inconsistencies in relation to the applicant’s description of what occurred during his claimed detention as to the number of times he was questioned, mistreated and by whom he was mistreated. It set out details of the significantly different evidence he had given at the Tribunal hearing about what he said had occurred after he was detained, in particular that at the hearing he had said that he had been hit and beaten so much, whereas at the Departmental interview he had mentioned only one instance of his head being pressed on a table. It recorded the applicant's explanation that he had been hit by inmates on many occasions and not by officers.
The Tribunal addressed the applicant’s explanation for why he had not given this account previously. It did not accept that the police pushing him around was equivalent to being mistreated and tortured during every interrogation and found that there were significant inconsistencies in his evidence about the torture he claimed to have endured. It did not accept that he did not mention these matters because he had become dumbfounded or that his mind was muddled up.
The Tribunal also found inconsistencies in relation to the applicant's claim at the hearing that he did not complain to authorities that dealt with health and safety because he came from the country and knew little of the law. It had regard to the fact that his evidence was that he had been to see three legal firms to seek legal advice about the death of his colleague and did not accept his evidence that not one of the lawyers he consulted informed him he could complain to the authorities, referring to country information (including the US Department of State Country Report on Human Rights Practices for 2006 in China) indicating that workers could complain about conditions and accidents to the Labour Bureau of the local government.
The Tribunal found these and other inconsistencies were so significant that the applicant was not a credible witness, that his evidence could not be relied upon and that his explanations for the inconsistencies were implausible. Because the Tribunal did not accept the applicant was a credible witness it did not accept his underlying claim that he had taken his relative to Beijing or took responsibility for him or guaranteed his safety or his associated claims about the events he claimed had occurred in Beijing and his home area, in particular his claims about payment of compensation money and when and how that occurred. In that respect the Tribunal found that the applicant had altered his evidence and that this indicated he was prepared to do so when confronted with problems in his evidence.
The Tribunal did not accept that the applicant was suspected or accused of undermining a major project as he had claimed. As it did not accept that the events he had complained of took place it did not accept his explanation for the reason he said he came to the attention of the authorities.
The Tribunal discussed further inconsistencies in relation to the applicant's evidence as to whether he needed permission or registration to work in Beijing and again found that his explanation was not credible and that the applicant was prepared to change his evidence to try to explain away inconsistencies.
The Tribunal referred to the fact that in the statutory declaration in response to the s.424A letter the applicant had claimed he was under huge pressure at the Departmental interview and the Tribunal hearing, unable to communicate directly owing to his language problem, that due to a different cultural background he could not easily understand the questions and that he had been in a similar situation while he prepared his written materials because he could not use his mother tongue in doing so.
The Tribunal accepted that the applicant was unable to communicate in English and that he may have felt under pressure at the interview and hearing. However it noted that the Department had provided a Mandarin interpreter at the interview and that at the Tribunal hearing a Mandarin interpreter, accredited at NAATI level three, was present and interpreted the evidence and that the applicant had stated at the hearing that he communicated with his migration agent in Mandarin in filling out his application and statutory declaration.
The Tribunal found that the applicant had had language assistance and observed that he had made no complaint about language problems until his second statutory declaration. It did not accept language difficulties as an explanation for the inconsistencies. In relation to the applicant's claim that he was under pressure at the interview and hearing the Tribunal observed that it was entitled to test the evidence.
The Tribunal found that if he had been detained and tortured as claimed the applicant would have recalled the significant incidents and not given contradictory evidence about physical abuse, where and how often it took place and who perpetrated it. It did not accept that the interview or hearing would have caused the applicant to give inconsistent evidence about significant matters, including his claimed detention and torture, his reporting of the death and delivery of compensation money or that his different cultural background caused him not to understand questions asked by the Department or the Tribunal.
The Tribunal reiterated that because of its findings that the applicant was not a credible witness, it did not accept the other aspects of his claims which it detailed, including his claims about being targeted by the authorities and having difficulties obtaining a passport (noting that the passport was issued in his own name and was not a false passport).
The Tribunal found that the applicant had provided false information in his application in order to be granted a protection visa. It did not accept that he had ever been adversely affected because of his political opinion and concluded that he did not have a well-founded fear of being persecuted in the past in China or at the present time for reason of his political opinion in light of its finding that the whole of his evidence showed a propensity to tailor it to achieve his purposes. Having regard to inconsistencies in his evidence the Tribunal did not accept that the applicant was involved in any political activity in China, including in the manner in which he claimed.
The Tribunal did not accept the applicant had been harmed in the past, or there was a real chance he would be harmed for a Convention reason if he were to return to China now or in the reasonable foreseeable future. It was not satisfied there was a real chance he would persecuted in China for the reasons he claimed, for reason of his actual or imputed political opinion or for any other Convention reason. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations and affirmed the decision not to grant him a protection visa.
The applicant sought review by application filed in this Court on 28 April 2008. He also filed an affidavit annexing the Tribunal decision. He did not file written submissions. He had the opportunity today to make oral submissions in which he reiterated the particulars to the grounds in his written application which in some respects are in the nature of submissions.
The first ground in the application is that: “The Tribunal failed to consider my claims impartially; and that there is apprehended bias in the Tribunal decision.” The particulars to this claim first raise a contention that it is impossible for any applicant to provide a protection visa application which includes “every detail or every aspect in relation to his or her claims” even if assisted by an adviser and that it is for this reason that “the Department has to arrange an interview sometimes or the Tribunal must invite the applicant to a hearing” to give the applicant an opportunity to detail his claims, clarify them or amend them. The particulars continue that even if this occurs “it is still impossible for any applicant” in his oral evidence to cover everything in relation to his application perfectly.
The applicant took issue with the fact that the hearing was not conducted by him but rather by the Tribunal member or immigration officer and that a different decision maker may have had a different approach and conducted the hearing in a different manner. It was said to be impossible for any applicant, including the applicant, to give oral evidence which “perfectly and completely, covered everything.”
The applicant then contended that he did not accept that his “core evidences (sic) or central claims” were significantly inconsistent, submitting that whether he reported or intended to report to the local police station about the death of the named person, or how many times exactly he had been beaten or interrogated while detained by the police or whether or not he needed a temporary residence permit in Beijing were not “core claims in his application” but “just part of details.” He claimed that when he prepared his written materials he may not have been able to put everything in his application and that when interviewed he was not given a genuine opportunity to give all details because the immigration officer had his own concerns or did not ask questions or could not properly interpret particular questions.
The applicant contented that there was apprehended bias in the Tribunal decision because the Tribunal also failed to consider the applicant's “core evidences or central claims, impartially and properly”, and concentrated on details which it was “somehow impossible to give or provide in writing or orally at the Departmental interview.” In particular the applicant contended that the Tribunal failed to consider his claim about his “difficult situation”, that he was “under huge pressure” at the interview and hearing, “unable to communicate directly” because of his “language problem” and because of his “cultural background” he could not easily understand the questions and therefore it was inevitable that he might not be able to describe his claims clearly and that he was in a similar situation when he prepared his written materials because he could “not use his mother tongue for so doing.”
The contentions in relation to apprehended bias appear to be based on the conduct of the review, including the Tribunal hearing and the Tribunal reasons for decision. I note in that respect that the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. As considered by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 a finding of apprehended bias is to be determined from the perspective of a “hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct [of the Tribunal] which is said to give rise to an apprehension of bias” (at [28]), and requires a consideration of whether from such perspective it might be reasonably apprehended that the Tribunal member may not have brought an “impartial mind to the resolution of the question to be decided” (at [27]).
No inference of apprehended bias can be drawn from the nature of the proceedings in relation to an application for a protection visa, including a written protection visa application and the possibility of an interview or hearing.
In relation to the applicant's claims about what occurred in the Tribunal hearing, it is apparent from the Tribunal account of what occurred that during a lengthy hearing conducted with the assistance of an accredited Mandarin interpreter, the applicant was provided with the opportunity to give evidence and respond to the Tribunal concerns about aspects of his evidence, including its concerns about differences in the evidence he had given at particular times. There is nothing in the material before the Court to indicate that it could reasonably be perceived that the applicant was not given a sufficient opportunity to put his claims in whatever detail he chose before the Department or the Tribunal. Nor is there anything to establish that the Tribunal did not appreciate or appeared not to appreciate or have regard to the nature of the process and the difficulty facing an applicant in applying for a protection visa. Rather it gave him an opportunity to elaborate on his claims and, insofar as there were inconsistencies, an opportunity to address such inconsistencies both in the hearing and in a subsequent letter under s.424A of the Migration Act. It is also apparent from the Tribunal reasons for decision that the applicant did respond and that the Tribunal had regard to the applicant's responses in that respect.
Insofar as the applicant's contention is that he was not allowed an opportunity to put his evidence in complete form because the hearing was controlled by the Tribunal member rather than by the applicant, that does not establish an apprehension of bias.
It is for an applicant to put evidence before the Tribunal and for the Tribunal to consider the evidence and contentions before it in relation to the criteria for the visa in question. It is the case that the Tribunal has the conduct of the Tribunal hearing. However in this case the applicant had the opportunity from the beginning, with the assistance of a migration agent, to put his claims in connection with his protection visa application and the opportunity, had he wished to do so, to provide any clarification of those claims in writing to the Tribunal.
I note in that respect that the Tribunal acknowledged receipt of the applicant's review application by letter of 14 December 2007 and invited him to send any documents, information or other evidence he wanted the Tribunal to consider. The applicant attended a Tribunal hearing, which it appears from the hearing record occupied nearly three hours of time. After the hearing the Tribunal wrote to the applicant and gave him an opportunity to respond to its concerns in relation to inconsistencies in his evidence.
There is nothing in the conduct of these proceedings that establishes the applicant's contentions of apprehended bias. Insofar as the applicant bases this contention on the fact that the Tribunal made adverse findings, it is well established that no inference of bias or pre-judgment can be drawn from the mere fact that the Tribunal has made adverse findings (see VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 and WABC of 2002 v Minister for Immigration and Indigenous Multicultural Affairs [2002] FCAFC 286).
Moreover, if the applicant takes issue with the Tribunal questioning, in NAJO Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356 (at [24]) in a case in which “[T]he Tribunal member was plainly sceptical of the appellant's claims and took a fairly vigorous approach in testing them,” Moore J held that what occurred in the hearing fell well short of establishing that the Tribunal approached its consideration of the applicant’s claims with a closed mind (see also Minister for Immigration and Citizenship v MZXPA (2008) 100 ALD 312). In this case, it has not been established that the Tribunal failed to maintain an open mind or that there was an apprehension of bias in that respect, bearing in mind that it gave the applicant an opportunity to respond to its concerns and addressed his response to those concerns in its reasons for decision. There is no transcript of the Tribunal hearing before the Court and the Tribunal’s account of the hearing does not support the applicant’s claims.
I note that any apprehension of bias must be reasonable. As Sundberg J stated in MZXPA at [13]:
The hypothetical fair-minded and informed person would be aware of the nature of the Tribunal’s review functions and proceedings, and that the Tribunal would not invite an applicant to a hearing unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant. That follows from s 425 of the Act.
The contentions of the applicant do not establish apprehended bias from such a perspective. Nor has it been established in this case that the Tribunal's fact finding was conducted in such a manner as to establish apprehended bias (see NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264). Credibility findings are a matter for the Tribunal. It has not been established that the fact finding was conducted in a manner which could be described as “in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way” as considered in NADH of 2001 per Allsop J at [115]).
Nor is this a case in which it can be said that the Tribunal lacked or appeared to lack an appreciation of the need to weigh the evidence before it, a lack of an ability or willingness to deal with the material before it with a mind open to persuasion or failed to fairly evaluating the material.
In relation to the applicant's contention that the Tribunal failed to consider his claims about pressure, language difficulties, cultural background and the lack of his mother tongue, as pointed out by the solicitor for the first respondent the Tribunal did consider such claims in its reasons for decision. It set out the applicant's claims in that respect made in his response to the s.424A letter. It noted that he had had the assistance of a migration agent and that he had communicated with that migration agent in Mandarin, that a Mandarin interpreter had been provided at the Department interview and at the Tribunal hearing and that no issues had been raised by the applicant as to language problems until the response to the s.424A letter. It found that he had language assistance and did not accept his explanation of language difficulties for the inconsistencies.
The Tribunal also addressed and accepted his claim that he felt under pressure at the Tribunal interview and hearing, but nonetheless did not accept that such pressure was an explanation for a lack of recollection or for the significant inconsistencies on significant matters, such as detention and torture. Nor did it accept his general claim that a different cultural background caused him not to understand questions asked by the Department or the Tribunal. It has not been established that the Tribunal failed to consider these claims or that the manner in which it considered these claims was such as to give rise to an apprehension of bias.
Again, I note the absence of any transcript of the Tribunal hearing such as might support the nature of the allegations that the applicant makes. There is no evidence before the Court to support any claim that the applicant was incapacitated and unable to participate in the Tribunal hearing such that it might be said that had not been accorded a real and meaningful invitation to the hearing (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33] – [37]). The first ground is not made out.
The second ground in the application is that the Tribunal “failed to comply with its obligations under s.424AA of the Act.” The particulars to this ground contend that the Tribunal considered that the applicant's claims were inconsistent with country information that workers could complain about conditions and accidents to the labour bureau of the local government. It was contended that the Tribunal had erred in failing to give the applicant oral particulars of the country information to that effect.
It was also contended that the Tribunal had failed to observe, in effect, the requirements of s.424AA(b) of the Act that it ensure as far as is reasonably practicable the applicant understood the relevance of the information, orally invite him to comment or respond, advise him that he may seek additional time to comment or respond and, if he did so, adjourn the review if it considered the applicant reasonably needed additional time to comment or respond.
The applicant's contentions in this respect do not establish jurisdictional error. Section 424AA does not impose an obligation on the Tribunal in the manner contended for by the applicant. Rather, as indicated by Marshall J in SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 (at [12]):
That section places no obligation on the Tribunal but enables it, if it so chooses, to orally give to an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review. It does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on.
This was said to be apparent from the explanatory memorandum accompanying the Bill which introduced the section and is further elaborated on in SZMCD v Minister for Immigration & Anor [2008] FMCA 1039.
In other words, s.424AA complements the Tribunal's existing obligations under s.424A. There is no equivalent to s.424A(3)(a) in express terms in s.424AA because, as Scarlett FM stated in SZMCD at [64], “[t]here does not need to be.”
It is not apparent from the Tribunal reasons for decision that it chose to put information before the applicant exclusively by way of reliance on s.424AA such as to give rise to the obligations under s.424AA(b). Rather it raised matters with the applicant in the course of the hearing consistent with its obligation under s.425 to put dispositive issues to him (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). After the hearing it wrote to the applicant pursuant to s.424A of the Act.
In those circumstances no obligation arose and there was no failure to comply with s.424AA, either in relation to country information or in respect of the information about procedures that the Tribunal has to put to an applicant where it does rely on s.424AA as a manner of putting information to an applicant. This ground is not made out.
Ground three is that the Tribunal failed to comply with s.424A in relation to the country information. However the country information in question is within the exception to the s.424A(1) obligation in s.424A(3)(a). No failure to comply with s.424A in relation to the country information has been established.
Insofar as this ground is intended to convey some broader complaint about s.424A, I note that the Tribunal wrote to the applicant in relation to its concerns about his inconsistent evidence. The majority of the High Court has indicated in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 by reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 that s.424A(1) does not encompass as information the Tribunal's subjective appraisals, thought processes or determinations. Nor does it extend to identified gaps, defects, lack of details or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps. As the majority of the High Court stated at [18]: “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.”
Insofar as it may be said that some of the matters put to the applicant under the s.424A letter were not in fact “information” the Tribunal does not fall into jurisdictional error by putting to an applicant matters that it is not, strictly speaking, obliged to put to an applicant, such as matters in the nature of mere inconsistencies, gaps or lack of detail or the Tribunal's appraisal of evidence before it. No failure to comply with s.424A has been established.
The final ground is that the Tribunal “failed to consider evidences (sic) before it properly and fairly”. This ground contends that the Tribunal incorrectly used independent country information as evidence to consider the applicant's claims. The particular continues that “as a matter of fact, there is NO Labour Bureau at all in China right now” and so how could the applicant make a complaint with the Labour Bureau.
The Tribunal referred to the sources of country information upon which it relied in relation its finding that workers complaining about conditions and accidents could complain to the labour bureau of the local government. The weight to be given to items of independent country information is a matter for the Tribunal. It has not been established that the findings that the Tribunal made were not open to it on the country information before it.
Country information can be taken into account by a Tribunal in the context of assessing the credibility of an applicant's contentions including in its consideration of inconsistencies and implausibility or improbability in aspects of the applicant's claims (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). It cannot be said in this case that there was no evidence to support the Tribunal's conclusions in relation to this particular issue. Whether country information should be accepted as accurate and its interpretation is a matter for the Tribunal.
The applicant's contention that the country information is not correct does not establish jurisdictional error. As the Full Court of the Federal Court stated in NAHI at [11]:
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
This ground is not made out.
As no jurisdictional error has been established the applicant must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the first respondent seeks costs in the sum of $2,800. The applicant told the Court that he had no money. The applicant's lack of funds is not a reason in the circumstances of this case for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent although it may be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought by the first respondent is at the lower end of the amounts sought in cases of this nature. I consider that in the circumstances of this case it is an appropriate amount.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 15 September 2008
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