SZMKG v Minister for Immigration
[2008] FMCA 1686
•25 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1686 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether bias or breach of ss.424A or 425 of the Migration Act – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424AA, 424A, 425 |
| Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZMKG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1535 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 25 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1535 of 2008
| SZMKG |
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 signed on 8 May 2008 and handed down on 20 May 2008 affirming a decision of the 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 a statutory declaration made in connection with his protection visa application the applicant claimed he arrived in Australia on a passport issued in another name by the Republic of China (Taiwan). However he claimed that he was from the People's Republic of China and provided a name and other identifying details. He claimed he had been employed as a seaman and had experienced difficulties in obtaining payment of his salary from the company (“D”) which employed him and provided his services as a seaman to different shipping companies. In January 2006 while working at a named shipping company (“BW”) he sustained an injury to his finger. BW initially met his medical expenses, but he claimed that he was unable to recover medical expenses, workers compensation and salary from his employer D and that he had to keep working for BW in order to repay the debt to that organisation.
The applicant claimed that from May 2007 he concentrated on seeking payment, workers compensation and repayment of a security bond from D. In July 2007, after unsuccessfully seeking assistance from government agencies and solicitors, he organised a protest outside the headquarters of D company together with other people who had worked as seaman for that company and also suffered from unfair treatment by it. He claimed he was arrested by the police who were bribed by D company and detained by the Public Security Bureau for a week, tortured and mistreated but released after his father paid a bribe.
The applicant claimed that in August 2007 he organised about
100 people to protest in relation to D company outside a local government building and that they distributed an open letter to the public requiring the government to investigate the company and the corrupt police who had been bribed by the company. He claimed that many police arrived and many protesters were beaten, wounded and some were arrested.
The applicant claimed that he escaped arrest and went into hiding and that the police visited his home many times with an arrest warrant and questioned his family. He claimed that as a person who was regarded as an organiser of an anti-government protest it was impossible for him to obtain a passport in his real identity and that his name would be on a blacklist. Hence he had, with assistance, taken an opportunity to go to Taiwan by boat and used a Taiwanese passport to come to Australia.
The protection visa application was refused. The applicant sought review by the Tribunal. He attended a Tribunal hearing. In its reasons for decision the Tribunal outlined the applicant's claims in his statutory declaration, referred to documents he had provided in relation to his identity and outlined what had occurred in the Tribunal hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The Tribunal recorded that on a number of occasions it put concerns to the applicant about inconsistencies it perceived in his evidence and other matters such as possible implausibilities and the absence of corroboration.
In its findings and reasons the Tribunal summarised the applicant's claims about his identity and documents he had provided in support of those claims. While it expressed concern about the applicant's unlawful use of the Taiwanese passport on the basis that this could raise serious doubts about other documents he provided, having considered the documents he provided in relation to his identity it assessed his claims on the basis that he was the person he had claimed to be and a national of the People's Republic of China. It also accepted as plausible on the information before it that the applicant had worked as a seaman for various shipping companies. However the Tribunal found on the evidence as a whole and for reasons which it gave that it was not satisfied that the applicant was involved in the anti-employer activities in which he claimed to have been involved. It was satisfied he had fabricated “those central claims in order to bolster his application for a protection visa.”
The Tribunal set out a number of concerns about the applicant's evidence at the hearing, stating: “In the course of the hearing, the applicant gave the impression of not being forthcoming about important aspect of his claims, such as the way he departed China. His responses about significant aspects of his claims written internally-inconsistent, and inconsistent with his own written claims.”
The Tribunal referred to specific matters including the applicant's evidence that he did not know he was going to Taipei when he was on the island from which he caught a boat from China. The Tribunal was of the view that it was implausible that the applicant got on a boat from an island and did not know where he was going. It referred to the fact that it had put this concern to him in the hearing. It found his response, (which referred to the role of the person he had asked to find a way to get out of China, that he was only thinking of leaving China, that his evidence was true and that it was time to go), was not convincing. It found that the lack of detail suggested that the applicant did not wish to provide information about how he left China, raising doubts about the veracity of his claims and his credibility generally.
The Tribunal also considered the applicant's evidence that the Taiwanese passport had an Australian visa on it and that he had no choice but to use it, but that he was not intending to come to Australia specifically and that a named person had taken him on a plane and brought him to Australia. The Tribunal was of the view that it was implausible that the applicant did not initially know that he was coming to Australia and found that this also raised doubts about his credibility and veracity. It recorded that it put its concern to him that he did not wish to tell the Tribunal details about his departure and his explanation that he did not know and had not been told where he was going. The Tribunal was of the opinion that the implausibility of claiming such lack of knowledge about his destination when he left the island suggested the applicant was not forthcoming about details.
The Tribunal then addressed the applicant's claim that he was injured at work in January 2006 while working for a shipping company which at the hearing he had named as “H”, which he said was owned by another named company (“HC”). It referred to the fact that in his statutory declaration he had stated he was working for a differently named company (“BW”) when the accident happened. The Tribunal was of the view that this inconsistency raised doubts about the veracity of the applicant’s claims and credibility. It was not persuaded by his explanation that maybe his migration agent got it wrong through mistranslation. It noted the absence of any medical or other evidence to support the applicant’s claim that he was injured at work.
The Tribunal also addressed some inconsistencies about the circumstances of the claimed protest in July 2007 and what it found to be confusion and lack of clarity in the applicant's evidence. It found that such confusion and incoherency raised doubts about the veracity of the applicant's claims and credibility.
The Tribunal recorded that when it invited the applicant to respond to its concern about the perceived confusion and incoherency the applicant said he was “too confused” and wanted to return on another day for a hearing because he was confused. The Tribunal expressed concern at this request. It was not satisfied that being confused was a reasonable ground to adjourn the hearing. However it took a break in the hearing. At the end of the hearing the Tribunal indicated to the applicant that he was entitled to seek additional time to comment on or respond to information it had given him during the course of the hearing that it considered could or would be a reason for affirming the decision to refuse him a visa. It recorded that it asked the applicant if he needed more time and he stated he did not need any further time to comment or respond.
The Tribunal also had regard to the fact that the applicant’s statutory declaration (which was long, detailed and comprehensive) did not mention significant details raised at the hearing about the events in July 2007 such as a claim that the applicant went up by himself to a particular level of the building in which D company had its offices where he was beaten and lost consciousness. It also had regard to the lack of detail in his claims about how his release from detention was obtained through the payment of a bribe.
In addition, the Tribunal expressed the view that it was difficult to understand that a month after the claimed events and ill-treatment of July 2007 the applicant would have become involved in organising
100 people. It found the applicant’s explanation that he had no other choice but to see if he could get help and that he could not continue to work on a ship to be unpersuasive. It also had regard to inconsistencies in his claims as to whether he organised 100 people or whether he and others organised 100 people.
The Tribunal was satisfied that when considered cumulatively these evidentiary concerns were evidence of a lack of credibility. Given its adverse credibility finding and the evidence as a whole the Tribunal was not satisfied that the applicant had been involved in any of the claimed activities. It did not accept he suffered a work-related injury or that D Company (if he worked for it) did not provide him with benefits or a salary or that he was unable to afford expensive medical costs or that the BW company he had referred to in his protection visa application had asked him to repay a debt which he did by working. Nor did it accept his claims about what occurred thereafter, in particular his claims about his role in events of July and August 2007, that he had been arrested, detained, ill-treated, sought by the police, or regarded as an organiser of an anti-government protest such that he would be on a blacklist or that he left China for reasons of persecution.
The Tribunal recorded that it was dealing with another case with similar circumstances to the applicant, but with different claims. It stated that it had not in any way used this matter in a manner adverse to the applicant.
The Tribunal concluded that it was not satisfied the applicant had suffered any Convention-related harm or that there was a real chance he would suffer any such harm in the reasonably foreseeable future.
The Tribunal also considered what could happen to the applicant on return to China given the unlawful use of a Taiwanese passport. However on the evidence as a whole it was not satisfied the applicant would suffer Convention-related harm for this reason, considering that any questioning by the PRC authorities would be part of a legitimate process of checking arrivals into the country.
The applicant sought review by application filed in this Court on 16 June 2008. The applicant did not file written submissions. The first ground in the application is that: “The Tribunal made its decision based on nothing apart from its unwarranted assumption or the Tribunal’s decision has included apprehended bias or the Tribunal incorrectly assessed my credibility.”
There are three particulars to this ground which refer to aspects of the Tribunal findings and takes issue with those findings. The first particular takes issue with the Tribunal finding that it was of the view that the lack of details about how the applicant left China suggested that he did not wish to provide information about how he left China, raising doubts about the veracity of his claims and credibility generally. The application continues: “The Tribunal, however, does not have basic knowledge or comment sense (sic)”. It was submitted that the Tribunal did not know about the situation in China. The applicant takes issue with the Tribunal finding on the basis that a “person should not ask too much” while being smuggled overseas by others. The application set out the applicant's claims that the police questioned his family, went to his home with an arrest warrant and that it would be dangerous for anyone to help him to go overseas so that, considering the safety of his family, he should not ask or know too much so he would not be able to expose those who had helped him were he to be arrested.
Particular (b) takes issue with the Tribunal's findings in relation to the implausibility of the applicant's claimed lack of knowledge about coming to Australia and as to where he was going when he left on the basis that it was “definitely possible” that the applicant did not initially know that he was coming to Australia, that the person who assisted him did not tell him which country he was going to because the purpose of leaving was to seek asylum and that no-one could guarantee that he could leave China without problems. It was contended that everyone had to consider their own safety, so it was impossible for them to tell him everything and they did not want him to know too much.
Particular (c) takes issue with the Tribunal's finding about the differences in the name of the company the applicant said he was working for at the time he claimed he suffered a work-related injury, the Tribunal's view of that inconsistency and the fact that it was not persuaded by the applicant’s explanation of a possible mistranslation. The applicant suggested that the migration agent might have had some confusion about the name of the company and the name of the ship because “one word in Chinese could be translated much differently according to its Cantonese or Mandarin spelling.” He claimed that he had shown his injured hand to the Tribunal and contended that simply basing findings on mistranslations in the statutory declaration and the absence of a medical certificate was unfair.
The applicant reiterated in oral submissions his concern about the unfairness of the Tribunal's approach in relation to particular findings. However his disagreement with these Tribunal’s findings does not establish jurisdictional error.
Insofar as the applicant claims that the Tribunal incorrectly assessed his credibility, it is well established that credibility is a matter for the Tribunal par excellence and not reviewable by the Court as such (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405). The Tribunal had a number of concerns in relation to an absence of detail and the manner in which the applicant was found not to be forthcoming in respect of important aspects of his claims, as well as internal inconsistencies and inconsistencies between written and oral claims in making its credibility finding. Such credibility findings were open to the Tribunal on the material before it for the reasons which it gave (see Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547). To the extent that the applicant seeks merits review of the Tribunal's fact-finding, merits review is not available in these proceedings.
The applicant claimed that the Tribunal made its decision based on unwarranted assumptions. He did not explain precisely what was meant by this contention, but it appears to relate to his concern that the Tribunal did not know about the situation in China and did not accept his explanations for his lack of knowledge or inconsistencies. However, as set out above, the Tribunal gave reasons for these findings (see SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198). In particular it expressed a view as to the implausibility of the applicant's evidence that he did not know where he was going when he left China, a lack of satisfaction with his explanation, described its further questioning of the applicant in relation to those events and on that basis found that the lack of detail and claimed lack of knowledge on the part of the applicant suggested that he was not forthcoming about such details. This aspect of ground one does not establish that the Tribunal made a jurisdictional error in the manner in which it made its findings in relation to the credibility of the applicant. It has not been established that the Tribunal’s findings were not grounded on probative material and logical grounds (see WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [22] – [24]).
It was also contended that the Tribunal decision was affected by apprehended bias. The applicant reiterated in oral submissions a concern about the fairness of the Tribunal decision. However, neither actual nor apprehended bias is established on the material before the Court, in particular the Tribunal reasons for decision, including the Tribunal account of what occurred in the Tribunal hearing.
Insofar as it might be intended to suggest there was actual bias, such an allegation is serious. It would be a rare and exceptional case where actual bias could be demonstrated solely from the published reasons of the Tribunal (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668). This is not such a case. It has not been established that the mind of the Tribunal member was so committed to a conclusion already formed as to be incapable of alteration as considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. On the contrary, the Tribunal recorded that it raised its concerns with the applicant and addressed his explanations.
Nor is the evidence such as to establish apprehended bias from the perspective of the appropriately informed fair-minded lay observer (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982). As Gleeson CJ, Gaudron and Gummow JJ stated (at [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.
The evidence before the Court is not such as to establish that vigorous testing of the evidence and exposure of the weaknesses in the applicant's case resulted in him being overborne or intimidated in the sense considered in Ex parte H.
I have also had regard to the possibility of bias arising out of the circumstances in relation to the applicant’s adjournment application which provide the basis for the contention in ground two of the application that there was a failure by the Tribunal to comply with s.425 of the Migration Act1958. Neither apprehended bias nor failure to comply with s.425 is made out on that basis. The applicant's contention is that he had some confusion at the Tribunal hearing owing to “huge mental and psychological pressure” and that he indicated to the Tribunal that he was too confused and wanted to return on another day for a hearing because he was confused. He took issue with the fact that an adjournment was refused and that instead the Tribunal only allowed a short break that he claimed was not sufficient. He claimed that he was unable to concentrate to give oral evidence or present argument.
The particulars to this ground claim that although the Tribunal asked the applicant whether he needed more time to comment on or respond to information he was unable to understand the exact meaning of this because he was already confused and that was why he said he did not need any further time.
As set out above, the Tribunal referred to the fact that when it indicated that the perceived confusion and incoherence in the applicant’s evidence could raise doubts about the veracity of his claims and his credibility and invited a response, the applicant said he was too confused and wanted to return on another day because he was confused. The Tribunal recorded its consideration of his request for an adjournment, but it indicated to the applicant that being confused was not a reasonable ground to adjourn the hearing. Nonetheless it took a break to enable the applicant to consider whether he wished to continue to participate in the hearing. Following the break the applicant told the Tribunal that he wished to continue with the hearing. At the end of the hearing the Tribunal gave him the opportunity to have further time to comment or respond to information but he stated he did not need any further time.
This ground (and the possible contention that there might be apprehended bias in such circumstances) is not made out. There is no suggestion that there was any evidence provided to the Tribunal to support the applicant's claim that he was in such a state, either mentally or physically, that he could not meaningfully participate in the hearing or that his condition was such as to have a significant effect upon his credibility or the Tribunal's assessment of his credibility. While the applicant did ask for an adjournment, the Tribunal considered that application, which was put on the basis of the applicant's confusion and no more than that. There is nothing in the material before the Court to indicate that the Tribunal was alert to the possibility that it should make any further inquiry about the applicant's state of mind beyond the consideration that it gave to his request for an adjournment to another day and its subsequent short adjournment, before it resumed. As French J stated in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [43], in circumstances where an applicant's migration agent had drawn the attention of a Tribunal member to his client's emotional state:
It is undoubtedly the case that many people, perhaps most people, who appear before the Tribunal are under emotional stress. This does not require an inquiry by the Tribunal in every case where an applicant is evidently under stress, into the question of the applicant's fitness to appear.
His Honour pointed out that the Tribunal was entitled and maybe obliged in some cases to take into account the emotional state of an applicant when assessing his evidence, but continued:
That kind of assessment is ultimately central to the fact-finding process of the Tribunal. It is not a matter in which the Court can substitute its own opinion in judicial review proceedings.
French J also referred to the fact that in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 the Full Court had expressed the view (at [37]) that the statutory obligation in s.425 on the Tribunal to provide a real and meaningful invitation existed whether or not the Tribunal was aware of the actual circumstances which would defeat that obligation.
While s.425 may be breached where an applicant is unable to attend or meaningfully participate in a hearing because of ill-health or on the basis of a need for significant medical treatment, there is no such evidence before the Court in this case. It has not been established that the applicant was unable to participate effectively in the hearing such that there was a failure to comply with s.425.
Nor does the Tribunal's approach to the applicant’s claimed confusion and his request for an adjournment to another day reveal apprehended bias. The Tribunal considered his request for an adjournment. It told the applicant at the end of the hearing that he was entitled to seek additional time to comment on or respond to additional information the Tribunal had given him in the course of the hearing. It asked him if he needed more time. He stated that he did not need any further time. The claim that he now makes that he was unable to understand this information is not supported by any evidence other than the claim in the application. There is no suggestion that this claim was raised with the Tribunal. It does not establish jurisdictional error on the part of the Tribunal. Grounds one and two in the application are not made out.
Ground three is expressed as a complaint that the Tribunal failed to provide the applicant with a genuine chance at the hearing and to comply with its obligations under s.424AA of the Act. It refers to the applicant's claims that he was confused when asked whether he needed more time to comment and contends that his answer that he did not need any further time was not evidence that the Tribunal had honestly complied with its obligations under s.424AA. It was contended that there was no evidence to show that the Tribunal had met its obligations in s.424AA(b) in relation to the procedure to be followed when it utilised s.424AA.
As stated in SZLWI v Minister for Immigration and Citizenship and Another (2008) 171 FCR 134 at [19], s.424AA does not impose any obligation on the Tribunal. It enables the Tribunal (if it chooses to do so) to give oral particulars of adverse information to an applicant at a hearing that may otherwise have to be given in writing under s.424A(1). If the Tribunal chooses to give oral particulars of information under s.424AA but fails to comply with the requirements of s.424AA(b) the consequence is not that it falls into jurisdictional error. Rather the consequence is that s.424A(2)(a) is not engaged. Section 424A(2)(a) exempts the Tribunal from the obligation to give written particulars of information in s.424A(1) if it has given clear particulars and invited comment or response under s.424AA. It is also relevant to note that in SZLXI v Minister for Immigration and Citizenship and Another (2008) 103 ALD 589 at [27] Cowdroy J expressed the view that while s.424AA does not contain a provision equivalent to s.424A(3), “what is not ‘information’ for the purposes of s 424A(1) of the Act is also not ‘information’ for the purposes of s 424AA.”
It appears from the Tribunal account of what occurred at the hearing that it was purporting to use the mechanism in s.424AA, given the manner in which it described the matters it put to the applicant and the opportunity it gave him at the end of the hearing to seek additional time to comment on or respond to information the Tribunal had given him that it considered could be the reason for affirming the decision to refuse him a visa. Insofar as it was resorting to s.424AA, it appears that the Tribunal followed the procedure in s.424AA(b), albeit it did not in its reasons for decision expressly invoke the provisions of s.424AA. In any event, given that the section does not impose an obligation on the Tribunal, the primary issue is whether there was information within s.424A(1) not within the exceptions in s.424A(3) that was not put to the applicant either orally under s.424AA or in writing.
The complaint that the applicant makes that his response to the Tribunal that he did not need further time was affected by his confusion does not establish a jurisdictional error on the part of the Tribunal. There is no suggestion that the applicant raised with the Tribunal, either at the time of the hearing or thereafter, the concern that he now raises about his inability to appreciate what was being said by the Tribunal or to suggest that the Tribunal misunderstood or in some way should not have accepted what the applicant said at that point. It is relevant to note that the issues raised by the Tribunal with the applicant in the hearing were responded to by the applicant, albeit not necessarily in a manner which the Tribunal found responsive or helpful.
In any event, the matters discussed by the Tribunal with the applicant in the Tribunal hearing such as inconsistencies in his evidence, either are not “information” within s.424A(1) or s.424AA (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190) or are outside the obligation in s.424A(1) by virtue of the exceptions in s.424A(3)(b) and s.424A(3)(ba).
I raised with counsel for the first respondent aspects of the Tribunal decision relevant to a consideration of s.424A. In describing the material before it the Tribunal referred to the fact that there was "material" on the Departmental file relating inquiries made by the Department and the fact that the applicant was interviewed by the Department. The Tribunal stated that it had not in any way used this information in an adverse manner to the applicant.
The information that the applicant gave in a Departmental interview was information he gave during the process that led to the decision under review, but it is not within s.424A(3)(ba) as that that excludes information that was provided orally by the applicant to the Department. However the Tribunal has stated that it did not use the information that the applicant provided orally to the Department. There is no evidence before the Court as to the evidence that the applicant gave in such an interview, except insofar as the delegate referred to such matters in the delegate's reasons for decision.
In SZJZB v Minister for Immigration and Citizenship [2008] FCA 1731 Jagot J stated (at [25]) that:
… insofar as the Tribunal’s reasons are relevant to the present task, disavowal of reliance on the information is itself potentially ambiguous rather than determinative of the issue given the terms of s 424A .
As was suggested in SZBYR at [17] the use in s.424A(1) of the future conditional tense rather than the indicative suggests that the operation of the section is to be determined in advance and independently of the Tribunal's particular reasoning. In SZJZB Jagot J pointed out (at [22]) that:
It is for this reason that the focus of the inquiry must be the provision under which the protection visa was sought (s 36) and whether the information contains any "rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations"..
There is no suggestion by the applicant in this case that there was particular information given in the oral interview with the Department that fell within s.424A. On the material before the Court, the Tribunal's general reference to the fact that there was a Departmental interview and the absence of any reference to the content of that interview, while not determinative, is not such as to assist in any determination as to whether or not the Tribunal was under an obligation in relation to such material.
The delegate of the first respondent referred to limited aspects of the interview, in particular the circumstances of the loss of the applicant’s finger, the absence of medical reports, his claims about the events of July 2007 and the difference between his claims at interview and his claims in the statutory declaration about whether he was knocked unconscious. However as the Court stated in SZBYR (at [18]) “if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1).” It has not been established that there was information in the interview that was within s.424A as information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. This case is not comparable to the circumstances in SZJZB where there was information consisting of the oral evidence of a third party relevant to the existence of the applicant's claim of well-founded fear of persecution, in particular, centrally relevant to the substance of the applicant's claim to fear persecution for political and religious reasons. On the material before the Court in this case it has not been established that there was a failure by the Tribunal to comply with s.424A by virtue of the fact that there was a Departmental interview which the Tribunal stated it did not use in an adverse manner to the applicant.
There is also material on the Departmental file relating to inquiries made by the Department which is not addressed further in the Tribunal reasons for decision. The Court Book contains material consisting of Overseas Compliance Officer Information Reports about the use of false Taiwanese passports by nationals from the People's Republic of China who appeared to have been smuggled into Australia by a Taiwanese escort. There is a reference in that material to the use of the passport on which the applicant claimed that he travelled to Australia. If that is the information to which the Tribunal referred, it is not information which contains any rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations. The fact of such information is not of adverse relevance to the substance of the applicant's claims for protection and the assessment of the existence of a claimed well-founded fear of persecution. Insofar as it is relevant to have regard to the Tribunal reasons for decision, the Tribunal accepted the applicant's claims about his identity and use of a Taiwanese passport. While it indicated that unlawful use of a Taiwanese passport could raise doubts about the other documents provided by the applicant, it assessed his claims on the basis that he was the person he claimed to be from the People's Republic of China. Nor was information about the Department’s investigation of the use of such passports relevant to the Tribunal's conclusion in relation to unlawful use of a Taiwanese passport and whether if the applicant were to return to China, he would be persecuted on that basis. The Tribunal accepted this claim as plausible but, as it indicated to him in the hearing, was of the view that this would be as a result of a law of general application and would not be persecution as contemplated by the Refugees Convention. The existence of such information and the Tribunal’s reference to material relating to inquiries made by the Department does not give rise to a breach of s.424A(1).
Finally, in the findings and reasons part of its decision, the Tribunal observed that it was dealing with another case with similar circumstances to the applicant but with different claims, but that it had not used this material in an adverse manner to the applicant. There is no other evidence before the Court in relation to such other case. There is nothing in the Tribunal reasons for decision to give rise to concern about the application of s.424A(1). On the limited information before me, this is not a case in which the Tribunal was under an obligation to put to the applicant that it was dealing with another case with similar circumstances but with different claims. The applicant did not contend that there were contraventions of s.424A on any of these bases. On the limited material before the Court these circumstances are not such as to establish jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANCRIBED
The applicant has been unsuccessful and there is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in the light of the nature of this and other similar matters.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 17 December 2008
14
1