SZMWE & SZMWF v Minister for Immigration & Anor
[2009] FMCA 86
•20 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMWE & SZMWF v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 86 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in China – applicants not believed – whether the Tribunal breached ss.424A or 425 of the Migration Act 1958 (Cth) considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425 |
SXRB v Minister for Immigration [2006] FCAFC 14
| Applicants: | SZMWE & SZMWF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Numbers: | SYG 2713 of 2008 SYG 2714 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 11 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2713 of 2008
SYG 2714 of 2008
| SZMWE & SZMWF |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
Applicant SZMWF is the brother of applicant SZMWE. Applicant SZMWE is his sister. They seek review of two separate but related decisions of the Refugee Review Tribunal (“the Tribunal”) made by the same presiding member and handed down on 23 September 2008. The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicants protection visas.
The following statement of background facts is derived from the Minister’s written submissions filed on 4 February 2009. I have also had regard to the applicants’ written submissions filed on 28 January 2009 in both cases.
The applicants are citizens of China and arrived in Australia on 7 March 2008. They applied for protection visas on 14 March 2008 (Relevant Documents (Brother) (RD(B)) at 1-35; Relevant Documents (Sister) (RD(S)) at 1-35).
Applicant-Brother’s Claims
The applicant-brother’s claims to protection were set out in a statutory declaration attached to his application for a protection visa (RD(B) at 26-28). His claims were based on his political opinion.
Relevantly, he claimed that he regained contact with his sister in May 2007, after several years during which they had not been in touch, and they planned to travel overseas. At that time, he was a student at the Jiangxi Province Public Security Police Training School. This status as a student rendered him ineligible for a passport. He claimed that his sister helped him obtain a passport in late July 2007, although they did not travel overseas at that time.
The applicant-brother started work in September 2007 at the Public Security Bureau (PSB) in Yichun City. He claimed that he witnessed the torture of suspects during interrogations and that this effected a great change in him. He claimed that he, together with two other students, began distributing pamphlets in December 2007 urging authorities to stop police violence. He also claimed that, in mid-January 2008, this group of three also “saved” a Falun Gong practitioner after her arrest by the PSB.
The applicant-brother claimed that an investigation was launched on 28 January 2008 into the source of the leaflets. On 26 February 2008, he claimed that he learned suddenly that the Falun Gong practitioner had been arrested with her boyfriend. He left to join his sister in Beijing, leaving China on 3 March 2008. His police associates also left Yichun, one of whom was subsequently arrested on 8 March 2008.
Applicant-Sister’s Claims
The applicant-sister’s claims to protection were also set out in a statutory declaration attached to her application for a protection visa (RD(S) at 26-28).
In broad terms, the applicant-sister’s claims mirror those of her brother – that she regained contact with him in May 2007 after many years apart, that she illegally obtained a passport for him in July 2007 and that her brother distributed anti-Communist material and saved a Falun Gong practitioner.
She claimed that, when she heard about the investigation formed in January 2008 into the source of the pamphlets, she began making arrangements for their travel overseas. These arrangements were used to leave China after the re-arrest of the Falun Gong practitioner.
The applicant-sister claimed that her brother had become the target of persecution because of his political opinion and, as she helped him, she too would be targeted.
Before the delegate
On 17 May 2008, the Minister’s delegate refused to grant the applicants protection visas (RD(B) at 48-57; RD(S) at 48-56).
Relevantly, with respect to the applicant-brother, the delegate:
a)was not satisfied that he is targeted by the Chinese authorities because of his political activities;
b)found that there were a number of factors which cast serious doubts on the credibility of his claims and the genuineness of his claimed fear of persecution;
c)found that the information given by him was “broad, vague and lacking in relevant detail”, as well as being inconsistent with other information;
d)considered that he would have provided more detailed evidence and some evidence to support his claims if he had been actively involved in political activity, referring specifically to his claim to have organised the publication and distribution of leaflets;
e)noted that the information regarding his family background or life in China is “very vague and sketchy” and that the absence of verifiable detail led the delegate to believe that his situation “is not as claimed”;
f)found, on the basis of information provided by him, that he was able to obtain, in his hometown of Hubei, a valid passport in his own name, which he used to leave China legally without any difficulty.
Relevantly, with respect to the applicant-sister, the delegate, similarly:
a)was not satisfied that she is targeted by the Chinese authorities because of her imputed political opinion due to having assisted her brother obtain his passport illegally;
b)found that there were a number of factors which cast serious doubts on the credibility of her claims and the genuineness of her claimed fear of persecution;
c)found that the information given by her was “broad, vague and lacking in relevant detail”, as well as being inconsistent with other information;
d)considered that she would have provided more detailed evidence and some evidence to support her claims if she had been actively involved in assisting her brother to depart China unlawfully, referring specifically to her claim to have obtained her brother’s passport illegally and to her brother’s political activities;
e)found, on the basis of information provided by her, that she was able to obtain, in her hometown of Hubei, a valid passport in her own name, which she used to leave China legally without any difficulty.
Before the Tribunal
On 13 June 2008, the applicants applied to the Tribunal for review of the delegate’s decisions (RD(B) at 58-62; RD(S) at 57-61).
The applicants attended a hearing before the Tribunal on 24 July 2008 (RD(B) at 70-71; RD(S) at 69-70; Annexure A to the affidavits of Sue Archer sworn 22 December 2008 and filed 28 January 2009 in each proceeding).
The Tribunal questioned each of the applicants separately, particularly in relation to the inconsistency between their claims (including those concerning the circumstances of their departure from China) and information given to the Australian Embassy by the travel company that had organised their travel to Australia.
On 25 July 2008, the Tribunal wrote to each of the applicants, pursuant to s.424A of the Migration Act (RD(B) at 80-82; RD(S) at 76-78). The applicants each responded on 13 August 2008 (RD(B) at 91-94; RD(S) at 87-90).
Tribunal’s findings and reasons
The Tribunal accepted that the applicants were each citizens of China but rejected the rest of their claims (RD(B) at 111 [34]-[35]; RD(S) at 106 [36]-[37]).
The Tribunal found each of the applicants’ evidence “not credible”. The Tribunal did not accept the Applicants’ explanations for the discrepancies between:
a)their respective evidence;
b)their claims and the statement from the travel company (RD(B) at 111 [38]; RD(S) at 106 [38]).
The presiding member referred to other reasons for rejecting the applicants’ accounts. He described these reasons as “other, more fundamental” with respect to the applicant-brother (RD(B) at 111 [39]) and as “additional” with respect to the applicant-sister (RD(S) at 111 [39]).
Referring to the claim that the applicant-brother’s passport was obtained illegally, the Tribunal did not believe that a police trainee would risk his career (or his liberty (RD(S) at 106 [39]) for a short overseas trip.
The Tribunal did not find it credible that, after years of training with the police, the applicant-brother would be so shocked by what he saw during interrogations that he, together with two colleagues, would start distributing pamphlets urging authorities to stop police violence (RD(B) at 113 [40]; RD(S) at 106 [40]).
The Tribunal rejected each of the applicants’ claims (RD(B) at 113 [41]; RD(S) at 107 [41]). The Tribunal found that the applicants did not have a well-founded fear of persecution in China for a Convention reason (RD(B) at 113 [43]-[44]; RD(S) at 107 [43]-[44).
The applications were heard concurrently before this Court. The applicants made separate, although related, protection visa claims and in each case, the findings and reasons of both the delegate and the Tribunal are, to a very large extent, the same. The applicants also advance similar grounds of judicial review.
The applications and evidence
These proceedings began with show cause applications filed on 21 October 2008. The applicants now rely upon amended applications filed on 12 January 2009 and 19 January 2009 (in the case of SZMWE). The applicant-brother raises the following grounds of review:
That the decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error:
1.in that the Tribunal did not comply with s 425 Migration Act 1958 in that it did not accord the applicant procedural fairness because it did not give the applicant a sufficient opportunity to give evidence or make submissions on determinative issues.
Particulars
a.In his application for a protection visa the applicant claimed and the delegate did not dispute that the applicant obtained his passport in mid-2007 illegally (as he was not eligible for a passport as a police trainee) for the purposes of taking a holiday trip with his sister.
b.In his application for a protection visa the applicant also claimed that, after five years of police training, he was so shocked by what he saw in police interrogations in late 2007 that he started distributing pamphlets urging the PRC authorities to take steps to stop police violence.
c.The delegate was not satisfied that the applicant was targeted by the Chinese authorities because of his political activities and instead found a number of factors which cast doubt on the credibility of the applicant’s claims generally and the genuineness of his fear of persecution. These factors did not include any inherent incredibility of the applicant’s claims in relation to:
· his obtaining a passport illegally in order to take a holiday trip with his sister; or
· his distribution of pamphlets against police violence.
d.In its decision the Tribunal found as fundamental reasons for not accepting the applicant’s account as a whole that his claims in relation to his obtaining passport illegally in order to take a holiday trip with his sister and his distribution of pamphlets against police violence were to it inherently incredible.
e.At the hearing the Tribunal did not warn or say anything to the applicant to indicate that it regarded these claims as incredible and that this incredibility was a fundamental reason for rejecting all the applicant’s claims for protection.
2.in that the Tribunal failed to comply with the requirements of s 424A (1) & (2) Migration Act 1958 in relation to statements in a letter from the China International Travel Service (Qindao) Co. Ltd (the travel agency).
Particulars
a.In its decision the Tribunal did not accept the applicant’s claims partly for the reason of what it saw as discrepancies between statements made in the travel agency’s letter and the applicant’s claims.
b.The Tribunal did not identify, either at the hearing or in writing, the relevant statements in the travel agency’s letter or how those statements conflicted with the applicant’s claims.
c.The Tribunal took no steps to ensure that the applicant understood the relevance of the statements to the review.
The applicant-sister raises the following single ground:
That the decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error:
1.in that the Tribunal did not comply with s 425 Migration Act 1958 in that it did not accord the applicant procedural fairness because it did not give the applicant a sufficient opportunity to give evidence or make submissions on determinative issues.
Particulars
a.In her application for a protection visa the applicant claimed and the delegate did not dispute that the applicant’s brother obtained his passport in mid-2007 illegally (as he was not eligible for a passport) for the purposes of taking a holiday trip with the applicant.
b.In her application for a protection visa the applicant also claimed that her brother was involved in the distribution of anti-Communist propaganda materials.
c.The delegate was not satisfied that there was a real chance the applicant would face systematic persecution on account of her imputed political opinion for assisting her brother obtaining his passport unlawfully. The delegate’s decision was not made on the basis of any inherent incredibility of the applicant’s brother’s claims in relation to
· his obtaining a passport illegally in order to take a holiday trip with the applicant; or
· his distribution of pamphlets against police violence.
d.In its decision the Tribunal found as additional reasons for not accepting the applicant’s account as a whole that her claims in relation to her assisting her brother to obtain a passport illegally in order to take a holiday trip with her and her brother’s distribution of pamphlets against police violence were to it inherently incredible.
e.At the hearing the Tribunal did not warn or say anything to the applicant to indicate that it regarded these claims as incredible or that it saw this incredibility as an additional reason for rejecting all the applicant’s claims for protection.
In each case I received the affidavit of Sue Archer made on 22 December 2008 to which is annexed a transcript of the hearing conducted by the Tribunal on 24 July 2008. I also received as evidence the books of relevant documents filed on 27 November 2008 (in SZMWF) and 2 December 2008 (in SZMWE).
Submissions
In the case of the applicant-brother, he alleges breaches of both s.425 and s.424A of the Migration Act. The applicant-brother submits:
The applicant claims the Tribunal fell into jurisdictional error in two respects; firstly, in that the Tribunal did not comply with s 425 Migration Act 1958 (the Act) in that it did not accord the applicant procedural fairness and secondly, in that the Tribunal … did not comply with s 424A(1)&(2) of the Act in relation to information it used from the travel agency about the applicant.
As the Tribunal’s decision involves jurisdictional error it is “regarded, in law, as no decision at all”: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [76]. Therefore the privative clause provisions of the Act do not apply to the Tribunal’s decision.
S 425 Ground
The applicant claims the Tribunal did not comply with s 425 of the Act in that it did not give the applicant a sufficient opportunity to give evidence or make submissions on determinative issues arising in relation to the decision under review: SZBEL V Minister for Immigration and Citizenship (2006) 228 CLR 152 at 165, [44].
Applicant’s Claims
In his statutory declaration in support of his application ([RD] 26-28) the applicant made claims relating to his real and imputed political opinion on the basis of assistance he gave to a Falun Gong practitioner, his attitude to police methods and his distribution of leaflets against police violence. He claims that his attitude to the Communist government and about being a policeman were changed after he witnessed an interrogation with torture while he was a trainee policeman in the Yichun City Public Security Bureau.
The applicant also claimed that in May 2007 while he was a student at the Jiangxi Province Public Security Special Training School he asked his sister (with whom he had recently reunited) to help him obtain a passport so that he could travel with her on an overseas holiday. He was not eligible for a passport as a police school student.
The applicant made no specific claim that he was putting his career at risk by obtaining the passport in 2007.
Delegate’s decision
The delegate was not satisfied that the applicant was targeted by the Chinese authorities because of his political activities: [RD]54.5. The delegate found a number of factors which cast doubt on the credibility of the applicant’s claims generally and the genuineness of his fear of persecution.
These credibility factors included what the delegate saw as a lack of detail and a broadness and vagueness in the information provided by the applicant, the applicant’s failure to leave China earlier or to seek protection in New Zealand, a lack of evidence of a profile, his departure from China without apparent difficulty, and his ability to satisfy the Australian authorities in China that he was a bona fide tourist.
The credibility factors did not include any inherent incredibility in the applicant’s claims in relation to his obtaining a passport illegally in order to take a holiday trip with his sister (thereby putting his career at risk) or in relation to his distribution of pamphlets against police violence because of his experience in Yichun PSB after 5 years police training
Tribunal’s decision – Determinative Issues
In its decision the Tribunal accepted only that the applicant was a citizen of China. It did not accept the rest of the applicant’s account for reasons of credibility arising from what it saw as conflicts between the applicant’s claims and the evidence of his sister and information in the travel agency letter.
The Tribunal also said there were “other, more fundamental reasons for not accepting the applicant’s account: [RD]111, para 39.
These other reasons were that the Tribunal found inherently incredible the applicant’s claims:
· in relation to his obtaining a passport illegally in order to take a holiday trip with his sister thereby putting his career at risk: [RD]111, para 39; and
· that he would be so shocked by what he saw in interrogations after five years of training in the police force that he would start distributing pamphlets urging the authorities to stop police violence: [RD]112, para 40.
In relation to its disbelief of the illegal passport/holiday claim the Tribunal said in its decision: “My scepticism on this point was put to the applicant in the hearing without receiving a convincing response”: [RD]111, para 39. The Tribunal made a similar claim in its decision on the sister’s application: sister’s [RD]106, para 39.
The Tribunal made no similar claim of warning in relation to its disbelief of the distribution of pamphlets claim in either the brother’s or the sister’s decisions.
The Tribunal made no similar claim of warning in relation to its disbelief of the distribution of pamphlets claim.
Despite its claim, the Tribunal did not at any time (including in the s 424A letter at [RD]80-82) warn or say anything to the applicant or his advisor to indicate that it regarded either of the claims as incredible or that this incredibility was a fundamental reason for rejecting all the applicant’s claims for protection.
After the hearing the applicant’s advisor submitted a second Statutory Declaration which addressed matters raised by the Tribunal in the s 424A letter: [RD]91-96. This second Statutory Declaration showed neither the applicant nor his advisor were aware or “on notice”[1] of the Tribunal’s attitude to the illegal passport/holiday claim or the distribution of pamphlets claim.
As the Tribunal did not say or do anything to identify or alert the applicant or his advisor of these issues[2] (which were not bases for the Delegate’s decision) the applicant was not given an opportunity to ascertain the issues “arising from the Delegate’s decision” as provided by s 425 of the Act.
As result the Tribunal did not accord the applicant procedural fairness and fell into jurisdictional error. The Tribunal did not give the applicant a sufficient opportunity to give evidence, or make submissions, about determinative issues arising in relation to the decision under review.[3]
[1] SZBELv MIMIA (2006) 228 CLR 152 at 165 , [42]
[2] Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 as approved in SZBEL at 162, [32], and SZBEL 165, [43]
[3] SZBEL 165, [44]
S 424A Ground
The information giving rise to obligations under s 424A of the Act was that information in the travel agency letter (at [RD]42-45) which the Tribunal said it regarded as inconsistent with the claims of the applicant.
The Tribunal referred in general terms to the existence of these perceived inconsistencies in the hearing as “differences” or “contradictions” (at tr 19.3, and 25.4) and in its decision as “discrepancies between the statements made in the travel agencies letter and the claims of the applicant”: [RD]111, para 36).
However the Tribunal did not, either at the hearing or in the s 424A letter, identify either the relevant statements in the travel agent’s letter or how these statements contradicted the applicant’s claims.
The s 424A letter is chiefly concerned with the differences between the responses of the applicant and his sister to the travel agent’s letter, the differences between the evidence of the applicant and his sister, and differences between his sister’s evidence and the travel agent’s letter. At the time of writing the s 424A letter the Tribunal had in mind that the applicant and his sister were not related but were in another relationship.
Therefore it is submitted the applicant has failed in its obligation under s 424A(1) to give clear particulars of the relevant information and to ensure the applicant understands how that information is relevant to the review.
The obligations on the Tribunal under ss 424AA and 424A to provide particulars of adverse information have increased with the addition of the word “clear” in a subsequent amendment of the Act qualifying the particulars to be given.[4]
[4] Changes introduced by the Migration Amendment (Review Provisions) Act 2007, No.100 of 2007, commenced 28 June 2007.
The applicant-sister’s submissions in relation to the asserted breach of s.425 of the Migration Act are similar, but not identical, to those of her brother. She submits:
In her statutory declaration in support of her application ([RD]26-28) the applicant made claims that she assisted her brother (SZMWF) to leave China, firstly in obtaining a passport for him when he was not eligible in order to take a trip with her in 2007, and then when he was in danger from the Chinese authorities in early 2008 because of the help he had given to a Falun Gong practitioner, his attitude to police methods and his distribution of leaflets against police violence.
The applicant’s brother had made no specific claim that he was putting his career at risk by obtaining the passport in 2007.
Delegate’s decision
The delegate was not satisfied that the applicant was targeted by the Chinese authorities because of her imputed political opinion: [RD]53.8. The delegate found a number of factors which cast doubt on the credibility of the applicant’s claims generally and the genuineness of her fear of persecution.
These credibility factors included what the delegate saw as a lack of detail and a broadness and vagueness in the information provided by the applicant, including as to how she obtained her brother’s passport and how she organized his departure without attracting the adverse attention of the Chinese authorities, the applicant’s failure to leave China earlier or to seek protection in New Zealand, a lack of evidence of an adverse profile or harm, her departure from China without apparent difficulty, and her ability to satisfy the Australian authorities in China that he was a bona fide Visitor (sic): [RD]53-55.
The credibility factors did not include any inherent incredibility in respect of the applicant’s claims to have helped her brother obtain a passport illegally in order to take a holiday trip with her (thereby putting his career at risk) or in her brother’s claims in relation to his distribution of pamphlets against police violence after 5 years of police training.
Tribunal’s decision – Determinative Issues
In its decision the Tribunal accepted only that the applicant was a citizen of China. It did not accept the rest of the applicant’s account for reasons of credibility arising from conflicts between the applicant’s and her brother’s evidence about the travel agency letter and from conflicts between her claims and statements made in the travel agency letter: [RD]106, para 38. The applicant had denied that the contents of the travel agent’s letter was true while the applicant’s brother had admitted its truth at the hearing.
The Tribunal also said there were “additional reasons for not accepting the applicant’s account”: [RD]106, para 39.
These other reasons were that the Tribunal found inherently incredible the applicant’s claims:
· in relation to her brother obtaining a passport illegally in order to take a holiday trip with her thereby putting his career at risk: [RD]106, para 39; and
· that after five years of training in the police force her brother would start distributing pamphlets urging the authorities to stop police violence, which was an “action leading inevitably to discovery, dismissal and probably imprisonment”: [RD]107, para 40.
In relation to its disbelief of the illegal passport/holiday claim the Tribunal said in its decision: “I received no satisfactory response to my attempts to obtain an explanation at hearing”: [RD]106, para 39. The Tribunal made a similar claim in its decision on the brother’s application: brother’s [RD]111, para 39.
The Tribunal made no similar claim of warning in relation to its disbelief of the distribution of pamphlets claim in either the brother’s or sister’s decisions.
Despite its claim, the Tribunal did not at any time (including in the s 424A letter at [RD]76-78) warn or say anything to the applicant or her advisor to indicate that it regarded either of the claims as incredible or that this incredibility was an additional reason for rejecting all the applicant’s claims for protection.
After the hearing the applicant’s advisor submitted a second Statutory Declaration which addressed matters raised by the Tribunal in the s 424A letter: [RD]87-90. This second Statutory Declaration showed neither the applicant nor her advisor were aware or “on notice”[5] of the Tribunal’s attitude to the illegal passport/holiday claim or the distribution of pamphlets claim.
As the Tribunal did not say or do anything to identify or alert the applicant or her advisor of these issues[6] (which were not bases for the Delegate’s decision) the applicant was not given an opportunity to ascertain the issues “arising from the Delegate’s decision” as provided by s 425 of the Act.
As result the Tribunal did not accord the applicant procedural fairness and fell into jurisdictional error. The Tribunal did not give the applicant a sufficient opportunity to give evidence, or make submissions, about determinative issues arising in relation to the decision under review.[7]
[5] SZBELv MIMIA (2006) 228 CLR 152 at 165 , [42]
[6] Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 as approved in SZBEL at 162, [32], and SZBEL 165, [43]
[7] SZBEL 165, [44]
In both cases, the Minister relevantly submits as follows:
Breach of s 425
The Amended Applications filed in each proceeding on 19 January 2009 each allege jurisdictional error arising from a breach of s 425 of the Migration Act.
The Applicants say that they were not given a sufficient opportunity to give evidence or make submissions on determinative issues. The issues are identified as “the inherent incredibility of the [Applicant-Brother’s] claims in relation to his obtaining a passport illegally in order to take a holiday with his sister and his distribution of pamphlets against police violence”
…
The Applicants say that the Tribunal did not say or do anything to alert the Applicants of these issues.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165 [47], the High Court stated there may well be cases where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.
These present proceedings are such a case.
The delegate rejected each of the Applicants’ claims in totality. When they came to the Tribunal hearing, they were not “entitled to assume” (as the High Court put it) that any matters they had claimed were accepted or not in issue. Moreover, the delegate’s reasons for refusing to grant the Applicants protection visas expressly refer to the very subject matter which is the foundation of the Applicants’ complaint regarding s 425, namely, the Applicant-Brother’s passport and his claimed political activities (see RD(B) at 55.5, 56.6, and at 54.7 respectively; see RD(S) at 53.9 and at 54.1, respectively).
In any event, it will be clear from a consideration of the transcript of the Tribunal hearing that everything they said in support of their applications was in issue. This was made clear to the Applicants, both separately and together.
This ground is not made out.
Breach of 424A
The Amended Application filed on behalf of the Applicant-Brother also alleges a breach of s 424A. The Applicant-Brother says that the Tribunal failed both to give him clear particulars of information and to ensure that he understood why the information is relevant to the review. No similar ground of review is advanced on behalf of the Applicant-Sister.
The relevant information for the purposes of s 424A(1) is as follows:
· First, the information contained in the letter provided to the Australian Embassy by the Chinese travel company that had organised the Applicants’ travel to Australia (see RD(B) at 42-45). The Tribunal member sets out the particulars of this information in five succinct and accurate dot points (see at RD(B) at 80.6-8). (It will also be seen from the transcript that the Tribunal also provided the particulars of the information to the Applicant-Brother during the hearing.)
· Secondly, the Applicant-Sister’s evidence at the Tribunal hearing (see RD(B) at 80.9-81.1). The Tribunal accurately sets out the particulars of the Applicant-Sister’s evidence in concise detail (see at RD(B) at 80.10-81.1).
The Tribunal’s obligation is to give clear particulars of the information (s 424A(1)(a)). There is no obligation on the Tribunal to set out the information itself. This is what the Tribunal has done with respect to both sets of information described above. There is no error in the Tribunal’s approach.
For completeness, it is noted that the Applicant-Brother’s own evidence to the Tribunal, which is also set out in the letter (see RD(B) at 80.9), falls within the exception in s 424A(3)(b).
By s 424A(1)(b), the Tribunal must ensure, as far as is reasonably practicable, that the applicant understand why the information is relevant to the review. The Tribunal amply satisfied this statutory requirement in the eight dot points set out on the second page of its letter (see RD(B) at 81.3-7).
This ground is not made out.
Reasoning
In respect of the claim of breach of s.425 of the Migration Act, the Tribunal’s obligation was to ensure that the applicants understood the essential and significant issues upon which the review would turn. Where the delegate dealt with the applicants’ claim in a particular way, they were entitled to assume that the issues on review would be the same unless informed otherwise by the Tribunal. The delegate made the following findings in relation to the applicant brother’s claims[8]:
[8] RD(B) 54-56
Reasons
Having considered the information provided by the applicant, I am not satisfied that he is targeted by the Chinese authorities because of his political activities. I find that there are a number of factors which casts serious doubts on the credibility of his claims, and the genuineness of his claimed fear of Convention related persecution. The information provided by the applicant is broad, vague and lacking in relevant detail and contains statements that are inconsistent with other information either from the application itself or other sources.
I consider that he would have provided more detailed information and some evidence to support his claims if he had been actively involved in any political activity. For example, he claims that he organised publication and distribution of leaflets against the ‘police violence’ in China but he did not provide any details of these leaflets, such as, why he organised this distribution, how he organised it, etc. He further claims that he later on learned that his friends have confessed to the authorities about the applicant’s involvement in the distribution of these leaflets and because of that he is now wanted by the authorities; here again the applicant did not provide any details of this incident, such as, how he came to know that his friends have made such confessions, when and where such confessions were made, etc. He also made claims that “…, who was a Falun Gong practitioner, had in fact been saved by us in middle of January 2008 while she had been arrested by Yichun PSB”, here again he did not provide any details or any evidence, either about … or how the applicant assisted her.
Also, I note that the information regarding his family background or regarding his own life in China is very vague and sketchy, for example, he does not explain why he had to stay away from his family for 7 years, or why and how he lost contact with them, or after 7 years how he again established the contact with them, or why after meeting his sister after 7 years he wanted to go overseas, etc. The absence of verifiable details leads me to believe the applicant’s situation is not as claimed.
Also, I note that his passport was issued to him on 25 July 2007, yet he did not make any attempt to depart from his country earlier. Also, I note that he visited New Zealand before coming to Australia but did not claim if he sought their protection. I find it to be inconsistent with a genuine and deep fear of persecution in terms of Refugees Convention, given that he had already come into adverse attention of the Chinese authorities due to his political activities and fled to avoid their detention.
Furthermore, there is no objective evidence to indicate that the applicant holds a profile that would attract adverse attention from the authorities if he were to return to the PRC. Rather, the evidence is to the contrary. Information provided by the applicant shows that his passport was issued to him in his own name in Hubei, where he was born and has been living and working until his latest departure for Australia in March 2008. And he used the same passport to leave China legally without any difficulty (5:1), although he states that ‘My sister …, who has planned my trip to the overseas, is also in big troubles. Particular, at least 3 people, who have been involved in organising my passport as well as my trip to the overseas, have been arrested by the PSB’ but again he did not elaborate. The fact that he was allowed to go indicates that the authorities did not consider him of any adverse interest. This being the case, the following advice from Department of Foreign Affairs (DFAT) on 10 August 2005 relevant to the applicant’s situation, indicates that he did not have an adverse profile as a political [activist] with the PRC authorities at the time of his departure:
China’s Entry and Exit Law states that the following groups of people shall not be given approval to leave China: (1) defendants in criminal cases or criminal suspects confirmed by a public security organ, a people’s procuratorate or a people’s court; (2) persons who, as notified by a people’s court, shall be denied exit owing to involvement in unresolved civil cases; (3) convicted persons serving their sentences; (4) persons undergoing rehabilitation through labour; and (5) persons whose exit from the country will, in the opinion of the competent department of the State Council, be harmful to state security or cause a major loss to national interests. The Ministry of Public Security (MPS), which administers the law, has advised that these five groups of people are not allowed to obtain passports. The MPS has wide powers to interpret who may be denied a passport. Local public security organs could conceivably deny a known Falun Gong practitioner a passport.
If a person was detained and tortured by the Chinese authorities for practising Falun gong it is conceivable that the local public security authorities would deny him or her passport should the person apply (CX130538, DFAT CIR No. 05/43).
Furthermore, DFAT confirms that the use of personal connections does not preclude the operation of the existing departure procedures, including identity checks by border authorities, which is designed to prevent any person from leaving China if the person is considered politically at risk.
The Ministry of Public Security issued a policy statement in December 2001 indicating that passport and exit procedures across the country would be simplified gradually. In major cities and regions such as Shanghai and Guangzhou/Pearl River delta, obtaining an ordinary passport is now a straightforward procedure. Applicants submit a form along with copies of their identification documents (ID cards or household registration papers/hukou) through their local post office, and are digitally photographed… Provided the applicant does not fall into any of the categories of persons ineligible to leave China…, the passport would likely be issued. Authorities expect to extend this procedure to all large and medium sized cities by 2005.
Elsewhere applicants must also include a letter of approval from their work unit, and provide their ID card and household registration papers/hukou to the Entry and Exit Bureau of the Ministry of Public Security. Passport issue can take up to fifteen working days. Applications for official (service and public affairs) passports must include supporting documentation from the applicant’s work unit, and a letter of invitation from overseas.
Checks with the Public Security Bureau in the applicant’s place of registered residence would reveal any adverse records held by public security organs on the applicant. An applicant “who’s exit, in the judgement of the relevant department of the state council, would be harmful to state security or cause a major loss to national interests” would likely be denied a passport (CX72393, 15 January 2003, DFAT).
I find that his only reason for apply for protection visa was to further extend his stay in Australia.
There is no evidence before me that the applicant has experienced any harm or mistreatment of sufficient gravity as to amount to persecution. I note that the applicant was born in 1985 and had 14 years of education in the PRC and was successfully employed. He was able to obtain a valid passport in his own name, in his hometown of Hubei and he used the same passport to leave his country legally without any difficulty. In addition, the applicant was able to satisfy the Australian authorities in Hubei that he was a bona fide tourist and obtained his visa for Australia. I conclude that the applicant has suffered no interference with his rights to employment and education, his freedom of movement has not been circumscribed, and he has had access to adequate funds. I am therefore unable to accept that he has any adverse profile, political or otherwise, which is of any interest to the authorities in China.
It must follow from the above reasoning that the applicant brother was on notice that the general credibility of his claims was wholly in issue. Specifically, his claims about the distribution of leaflets hostile to the Chinese Communist Party was not accepted and an important issue was that the applicant left China on a passport issued to him in his own name well before he left China. Further, he left China legally and without difficulty. Also apparent from the delegate’s decision was the significance the delegate saw of inconsistencies between the applicant’s claims and other material.
The Tribunal dealt with the applicant brother’s claims in the following terms[9]:
[9] RD(B) 111-112
I accept that the applicant is a citizen of China.
I do not accept the rest of the applicant’s claims. I have considered very carefully the submission made by the applicant in response to the Tribunal’s s.424A letter. In particular, I have listened carefully to the recording of the hearing. As a result, while I can accept that there may have been on one or two occasions a misunderstanding or lack of understanding on the part of the applicant, there are other occasions on which there is no possibility of such misunderstanding or lack of understanding.
In particular and importantly, towards the end of the hearing, I returned to the discrepancies between the statements made in the travel agency’s letter and the claims of the applicant. I informed the applicant that his sister had denied speaking to the travel agency and stated that all the facts stated in the letter were false. I went on to say that he had said that he remembered speaking to the travel agency and that the facts contained in its letter were true. I asked how I could reconcile these statements. He replied only that “what happened to me is true”.
As to the earlier part of this discussion, my review of the tape satisfies me that the applicant understood my question as to whether he remembered talking to the travel agency on the telephone and understood my question as to whether he remembered telling the travel agency that his mother sold seafood. His response to the first was a simple “yes”. His response to the second was that this was what his sister had told him. In other words, he did not dispute that he had talked to the travel agency. He only clarified that his knowledge of his mother’s occupation was second hand.
I find, therefore, that the applicant’s evidence is not a credible and I do not accept any of his explanations for the discrepancies between his evidence and his sisters and between his claims and the statements made in the letter from the travel agency. His claimed inability to afford a Level 3 translator is irrelevant and, in any case, since he has been able to afford DNA testing, I do not believe it. However, nothing turns on the matter, as all questions of credibility were fully canvassed at hearing, with the assistance of a fully qualified interpreter. I am unable to discern anywhere where the applicant was disadvantaged by the quality of any translation in either direction.
There are other, more fundamental, reasons for not accepting the applicant’s account. He claims that he obtained his passport illegally (as, according to the applicant, police trainees were not eligible to apply for a passport) in mid-2007 simply in order to facilitate an overseas trip with his sister with whom he had been recently re-united. The issues which he claims gave rise to his application for protection did not arise until December 2007 and January 2008. I do not believe that a police trainee would thus risk his career – in which he had by then according to his own account invested 5 years of his life – simply for a trip. My scepticism on this point was put to the applicant in the hearing without receiving a convincing response.
In addition, I do not find it credible that, after more than 5 years training in the police force, he would, in late 2007, be so shocked by what he saw during interrogations at that time that he would, with other police force colleagues, start distributing pamphlets urging the authorities to take steps to stop police violence, action which would inevitably lead to finding himself in just the situation which had upset him.
Accordingly, I do not accept that the applicant is in any way in the situation which he describes in his application and further evidence. I do not accept that he has been involved in activity which could be thought to be or suspected of being against the Chinese authorities, such as helping a Falun Gong supporter. It follows that I do not accept that this person has been arrested. I do not accept that colleagues have been arrested as a result of their participation in these activities or that anyone associated with him or with his sister has been interrogated or threatened or arrested for the same reason. Nor do I accept that there is a real chance of any of these things happening to the applicant should he return to China in the foreseeable future.
For various reasons, a question arose in my mind at hearing as to whether the applicant and his sister are in fact brother and sister. The applicant’s adviser has submitted to the Tribunal the result of DNA profiling of them both which strongly suggests that they are brother and sister. Since, in the event, nothing turns on the question of whether they are or not, I have not investigated the authenticity of this report and accept, for the purposes of this decision, that they are brother and sister.
Taking all the above into account, I do not accept that there is a real chance of the applicant suffering harm amounting to persecution for reason of his real or imputed political opinion or for his membership of a particular social group or for any other Convention reason should he return to China in the foreseeable future.
In relation to the applicant sister, the delegate found[10]:
[10] RD(S) 53-55
Reasons
Having considered the information provided by the applicant, I am not satisfied that she is targeted by the Chinese authorities because of her imputed political opinion as she assisted her brother by obtaining his passport unlawfully. I find that there are a number of factors which casts serious doubts on the credibility of her claims, and the genuineness of her claimed fear of Convention related persecution. The information provided by the applicant is broad, vague and lacking in relevant details and contains statements that are inconsistent with other information either from the application itself or other sources.
I consider that she would have provided more detailed information and some evidence to support her claims if she had been actively involved in assisting her brother to depart China unlawfully. For example, the applicant did not provide any details of how she was able to obtain her brother’s passport, where and who did she approach to acquire the passport, how she organised his departure from China without attracting the adverse attention of the authorities, etc. She further claims that as she has assisted her brother she would be targeted by the Chinese authorities but again she did not provide any details or any evidence in support of her claims. She also claims that her brother has been sought by the authorities because of his political activities, here again she failed to elaborate. She also made claims that her boyfriend’s business in China has been sealed and that he has been subjected to an investigation, here again she did not provide any details of this aspect of her claims.
I note that although her passport was issued to her on 25 July 2007 yet, she did not make any attempt to depart from her country earlier. Also, I note that she visited New Zealand before coming to Australia but did not claim if she sought their protection. I find it to be inconsistent with a genuine and deep fear of persecution in terms of Refugees Convention, given that she had already come into adverse attention of the Chinese authorities due to her alleged anti-government activities.
Furthermore, there is no objective evidence to indicate that the applicant holds a profile that would attract adverse attention from the authorities if she were to return to the PRC. Rather, the evidence is to the contrary. Information provided by the applicant shows that her passport was issued to her in her own name in Hubei, where she was born and has been living and working until her latest departure for Australia. And she used the same passport to leave China legally without any difficulty (5:1), although she states that ‘please [refer] to my Statutory Declaration’ but I could not locate any information in her statement of claims which indicates that she had difficulty departing legally from China. The fact that she was allowed to go indicates that the authorities did not consider her of any adverse interest. This being the case, the following advice from Department of Foreign Affairs (DFAT) on 10 August 2005 relevant to the applicant’s situation, indicates that she did not have an adverse profile as a political [activist] with the PRC authorities at the time of her departure:
China’s Entry and Exit Law states that the following groups of people shall not be given approval to leave China: (1) defendants in criminal cases or criminal suspects confirmed by a public security organ, a people’s procuratorate or a people’s court; (2) persons who, as notified by a people’s court, shall be denied exit owing to involvement in unresolved civil cases; (3) convicted persons serving their sentences; (4) persons undergoing rehabilitation through labour; and (5) persons whose exit from the country will, in the opinion of the competent department of the State Council, be harmful to state security or cause a major loss to national interests. The Ministry of Public Security (MPS), which administers the law, has advised that these five groups of people are not allowed to obtain passports. The MPS has wide powers to interpret who may be denied a passport. Local public security organs could conceivably deny a known Falun Gong practitioner a passport.
If a person was detained and tortured by the Chinese authorities for practising Falun gong it is conceivable that the local public security authorities would deny him or her passport should the person apply (CX130538, DFAT CIR No. 05/43).
Furthermore, DFAT confirms that the use of personal connections does not preclude the operation of the existing departure procedures, including identity checks by border authorities, which is designed to prevent any person from leaving China if the person is considered politically at risk.
The Ministry of Public Security issued a policy statement in December 2001 indicating that passport and exit procedures across the country would be simplified gradually. In major cities and regions such as Shanghai and Guangzhou/Pearl River delta, obtaining an ordinary passport is now a straightforward procedure. Applicants submit a form along with copies of their identification documents (ID cards or household registration papers/hukou) through their local post office, and are digitally photographed… Provided the applicant does not fall into any of the categories of persons ineligible to leave China…, the passport would likely be issued. Authorities expect to extend this procedure to all large and medium sized cities by 2005.
Elsewhere applicants must also include a letter of approval from their work unit, and provide their ID card and household registration papers/hukou to the Entry and Exit Bureau of the Ministry of Public Security. Passport issue can take up to fifteen working days. Applications for official (service and public affairs) passports must include supporting documentation from the applicant’s work unit, and a letter of invitation from overseas.
Checks with the Public Security Bureau in the applicant’s place of registered residence would reveal any adverse records held by public security organs on the applicant. An applicant “who’s exit, in the judgement of the relevant department of the state council, would be harmful to state security or cause a major loss to national interests” would likely be denied a passport (CX72393, 15 January 2003, DFAT).
There is no evidence before me that the applicant has experienced any harm or mistreatment of sufficient gravity as to amount to persecution. I note that the applicant was born in 1983 and had an education in China and was successfully employed. She was able to obtain a valid passport in her own name, in her hometown and she used the same passport to leave her country legally without any difficulty. In addition, the applicant was able to satisfy the Australian authorities in China that she was a bona fide Visitor and obtained her visa for Australia. I conclude that the applicant has suffered no interference with her rights to employment and education, her freedom of movement has not been circumscribed, and she has had access to adequate funds. I am therefore unable to accept that she has any adverse profile, political or otherwise, which is of any interest to the authorities in China.
The Tribunal found in relation to the applicant sister’s claims[11]:
[11] RD(S) 106-107
I accept that the applicant is a citizen of China.
I do not accept the rest of the applicant’s claims. I have considered very carefully the submission made by the applicant in response to the Tribunal’s s.424A letter. In particular, I have listened carefully to the recording of the hearing. As a result, while I can accept that there may have been on one or two occasions a misunderstanding or lack of understanding on the part of the applicant’s brother, there are other occasions on which there is no possibility of such misunderstanding or lack of understanding.
I am quite satisfied that the applicant’s brother understood my question and wanted to tell me that the statements of the travel company were true. In particular, my review of the tape satisfies me that her brother understood my question as to whether he remembered talking to the travel agency on the telephone and understood my question as to whether he remembered telling the travel agency that his mother sold seafood. His response to the first was a simple “yes”. His response to the second was that this was what his sister had told him. In other words, he did not dispute that he had talked to the travel agency. He only clarified that his knowledge of his mother’s occupation was second hand.
I find, therefore, that the applicant’s evidence is not a credible and I do not accept her explanations for the discrepancies between her evidence and her brother’s and between her claims and the statements made in the letter from the travel agency. The claimed inability to afford a Level 3 translator is irrelevant and, in any case, since the applicant and her brother have been able to afford DNA testing, I do not believe it. However, nothing turns on the matter, as all questions of credibility were canvassed at hearing, with the assistance of a qualified interpreter and subsequently by way of a s.424A letter. I am unable to discern anywhere where the applicant was disadvantaged by the quality of any translation in either direction.
There are additional reasons for not accepting the applicant’s account. She claims that, through friends, she obtained her brother’s passport illegally (as, according to the applicant, police trainees were not eligible to apply for a passport) in mid-2007, in order to facilitate an overseas trip with a brother with whom she had only been recently re-united. I do not believe that a police trainee would thus risk possibly his liberty and at least his career – in which he had by then according to his own account invested 5 years of his life – simply for a short overseas trip. I received no satisfactory response to my attempts to obtain an explanation at hearing.
Nor do I find it credible that, after more than 5 years training in the police force, her brother would, with two other police force colleagues, start distributing pamphlets urging the authorities to take steps to stop police violence, action leading inevitably to discovery, dismissal and probably imprisonment.
Accordingly, I do not accept that the applicant is in any way in the situation which she describes in her application and further evidence. I do not accept that her brother has been involved in activity which could be thought to be or suspected of being against the Chinese authorities, whether by distributing material against the authorities or by assisting a Falun Gong practitioner. I do not accept that his colleagues have been arrested as a result of their participation in any of these activities or that anyone at all associated with him or with her has been interrogated or threatened or arrested for the same reason. I do not accept that the applicant is regarded as being involved in such activities or that her boyfriend is under investigation and that his bar has been closed or that she and he are being sought by the police. Nor do I accept that there is a real chance of any of these things happening to the applicant should she return to China in the foreseeable future.
For various reasons, a question arose in my mind at hearing as to whether the applicant and her brother are in fact brother and sister. The applicant’s adviser has submitted to the Tribunal the result of DNA profiling of them both which strongly suggests that they are brother and sister. Since, in the event, nothing turns on the question of whether they are or not, I have not investigated the authenticity of this report and accept, for the purposes of this decision, that they are brother and sister.
Taking all the above into account, I do not accept that there is a real chance of the applicant suffering harm amounting to persecution for reason of her real or imputed political opinion or for her membership of a particular social group or for any other Convention reason should she return to China in the foreseeable future.
I accept the Minister’s submission that the applicants should have been on notice from the delegate’s decision that the issue of the brother’s passport was a significant one and (subject to anything the Tribunal might say about it) would be an essential and significant issue for the purposes of the review. Likewise, they should have identified the issue of the applicant brother’s asserted political activities as an essential and significant issue from the delegate’s decision.
Further, I accept the Minister’s submissions that, in any event, the Tribunal did enough to raise these matters with the applicants at the hearing conducted by the Tribunal. The transcript of the Tribunal hearing discloses the following:
a)early in the hearing the presiding member identified the particulars in the information received from the travel agent that were inconsistent with the information provided by the applicants[12]:
TRIBUNAL MEMBER: Now, I have some other information which I need to discuss with you. The company that organised your trip is called the China International Travel Service clinic /TKO*U and they have written a letter to the Australian embassy about you and your brother. And they say your applications were referred to them by a travel agency in Hunan and this occurred on 15 January. On the application form was your mobile telephone number and they telephoned you and you told them that you were helping your mother with seafood business in Fujian and you gave them your mother’s telephone number.
You were asked why your mother was in Fujian since the family came from Hubei and you told them that your parents worked in Hubei previously between 1999 and 2003 but that your parents had then moved to Fujian province where your mother was involved with her seafood business and your father worked in a company in Fujian city. And you gave the travel agency your father’s telephone number, or the telephone number of the company where your father worked.
They asked you whether there was anyone else in the family and you told them about another sister. They then asked you about your brother and you said that he had just graduated from the Police Academy in Jiangxi province and because this was the time of Spring Festival vacation he was at home waiting for a job.
They then telephoned your mother at the number that you had given them and she confirmed everything that you had told them. She then called the company where your father works and spoke to the manager who confirmed that your father worked there. They then asked to speak to him which they did and he confirmed also what you and your mother had told them.
Your father also said that he was looking forward to some time for the whole family to travel overseas together.
Now, all this is very different from what you have just told me and from what is in your application.
b)the issue of the travel agent information and the passport information was raised again with the applicant sister by the presiding member on page 10 of the transcript at about point 7, on page 12 of the transcript at about point 3 and point 5, at page 13 of the transcript at about point 7, on page 16 of the transcript at about point 5 and the applicant sister had a further opportunity to respond on page 17 of the transcript at about point 4;
c)the presiding member further questioned the applicant brother’s credibility in relation to the alleged overseas holiday on pages 18 of the transcript at about point 7 and on page 19 of the transcript at about point 4;
d)on page 21 of the transcript at about point 3 the Tribunal member expresses general disbelief at the applicant brother’s attempts to explain the inconsistency between his evidence and that of his sister covering the information from the travel agency and again (with both applicants present) in relation to the claims generally at page 25 of the transcript.
[12] transcript, pp7-8
In my view, the combination of the delegate’s reasons in each case and the doubts and concerns raised orally by the presiding member during the course of the Tribunal hearing could have left the applicants in no doubt that the credibility of all of their claims was in issue and that, in particular, the credibility of their claims about obtaining a passport illegally in order to take a holiday and the applicant brother distributing anti-Communist leaflets was in issue. I reject the first ground of review.
As to the asserted breach of s.424A in relation to the applicant brother, the letter written pursuant to that section is reproduced at RD(B) 80-82 and relevantly states:
You are invited to comment on or respond to information that the Tribunal considers would, subject to any comments or response you make, be the reason, or a part of the reason, for affirming the decision that is under review.
The particulars of the information are that, at your hearing on 24 July 2008, you were informed by the Presiding member that the Australian Embassy in Beijing had received a report form the company which had organised your travel to Australia, in which the company had advised that, when it received your applications to travel, on 15 January 2008,it made certain inquiries, with the following results:
· Your sister told the company that she was working with your mother in a seafood business in Fujian;
· She gave the company your mother’s telephone number and yours and the telephone number of your father’s employer;
· Your mother confirmed the information provided by your sister;
· You also confirm that information and added that you had just graduated and were at home during the Chinese Spring Festival waiting for your chance;
· Your father also confirmed the information provided by your sister and added that he was looking forward to the family being able to travel overseas together.
When you were asked at hearing whether this information was true, you said it was. You also stated that you recalled the telephone conversation with the travel company. You said that you were not in contact with your parents, but had been told by your sister of your parents’ occupations. You confirmed that your parents lived in Fuqing.
At her hearing, your sister stated that the information contained in the travel company’s report was false, that your parents had been divorced in 1998, that a friend, Yang Fang, had organised the trip to Australia, that she had arranged the trip through this friend in late January and had travelled to Beijing on 3 February and that she had planned to return to China, but had changed her plans after your learned on 8 March that a class mate had been arrested in connection with anti-government activities, that Yang Fang had told the tour leader that you would both leave the tour in Australia and, finally, that, if it had not been for the phone call on 8 March, you both would have returned to China.
This information is relevant to the review because:
· You and your sister have contradicted one another as to the accuracy of the report from the travel company;
· Your evidence is inconsistent with your written claims in respect of your relationship with your father;
· Your sister’s evidence that you would have returned to China but for the 8 March telephone call is inconsistent with the timing of your decision to leave the country as stated in the Statutory Declaration attached to your primary application;
· It is also inconsistent with her claim that a friend falsified your personal details in order to secure your travel to Australia;
· It is also inconsistent with your sister’s claim that your passports were obtained in an unlawful manner;
· The obtaining of passports in an unlawful manner in mid-2007 is inconsistent with your written and oral claims as to the timing of your decision in early 2008 to leave China, because of events which occurred long after mid-2007;
· Your uncertainty and vagueness as to your parents’ situation and the inconsistency in your evidence and your sister’s raises questions as to your real relationship with the person you say is your sister.
· Taking all the above into account, the Tribunal may conclude that your claims in their entirety have been concocted and are untrue and that the entire exercise has been undertaken for migration purposes, to permit you and the person you call your sister to remain in Australia.
You are invited to give comments or respond to the above information in writing.
Your comments or response should be received at the Tribunal by 8 August 2008. If the comments or response is in a language other than English they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 8 August 2008, you may ask the Tribunal in writing for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the Tribunal before 8 August 2008 and the request must state the reason why the extension of time is required. The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
Once again, I accept the Minister’s submissions. The five dot points in the quote from the letter reproduced above adequately particularise the information from the travel agent’s letter, which the Tribunal viewed as significant. The Tribunal did not have to provide a copy of the letter or quote from it[13]. The Tribunal also explained how that information conflicted with the evidence of both the applicant brother and the applicant sister. Further, the eight dot points reproduced in the quoted portion of the letter above were sufficient for the Tribunal to ensure that the applicant brother understood the relevance of the information obtained from the travel agent. It is true that the letter was also directed towards the Tribunal’s doubts about the relationship between the applicant brother and applicant sister but that does not detract from the force of the letter in drawing attention in writing to the Tribunal’s doubts about the applicant’s claims of having obtained passports illegally and that the claims in their entirety had been concocted.
[13] SXRB v Minister for Immigration [2006] FCAFC 14 at [9]
I reject the second ground of review in the applicant brother’s application.
I conclude that the Tribunal decisions are free from jurisdictional error and are thus privative clause decisions. The applications must be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 March 2009
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