SZNTF v Minister for Immigration - [2010] FMCA 4

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTF v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 4

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant’s mother making separate protection visa application but similar claims – evidence given by the mother used in the applicant’s case – whether the Tribunal breached ss.420, 424A or 425 of the Migration Act 1958 (Cth) considered – consideration of the Tribunal’s power to obtain and rely upon third party information and the obligations of procedural fairness that result from such reliance in the context of the code of procedure binding the Tribunal – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 359A, 363, 420, 422B, 424A, 424AA, 425, 427, 429

Applicant VEAL of 2002 v Minister for Immigration
Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration v Katisat [2005] FCA 1908
Minister for Immigration v Kumar [2009] HCA 10
MZXGB v Minister for Immigration [2007] FCA 392
Park & Anor v Minister for Immigration & Anor [2009] FMCA 7
SZAYW v Minister for Immigration [2006] HCA 49
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZCUB v Minister for Immigration& Anor [2005] FMCA 495
SZGQM v Minister for Immigration& Anor [2008] FMCA 68
SZHKA v Minister for Immigration [2008] FCAFC 138
SZIAQ v Minister for Immigration [2008] FCA 654
SZJXR v Minister for Immigration & Anor [2007] FMCA 1813
SZLIQ v Minister for Immigration [2008] FCA 1405
SZNKO v Minister for Immigration& Anor [2009] FMCA 978
SZNTE v Minister for Immigration & Anor [2009] FMCA 1256
Voung v Minister for Immigration [2009] FMCA 433

Applicant:

SZNTF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1690 of 2009

Judgment of:

Driver FM

Hearing date:

21 December 2009

Date of Last Submission:

1 March 2010

Delivered at:

Sydney

Delivered on:

16 April 2010

REPRESENTATION

Counsel for the Applicant:

Mr V Hooton, pro bono publico

Counsel for the Respondents:

Ms S A Sirtes

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1690 of 2009

SZNTF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 17 June 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is derived from the Minister’s outline of written submissions filed on 3 December 2009.
On 11 March 2009, the applicant was located in country Victoria and taken to Villawood Immigration Detention Centre. On 23 March 2009 she lodged an application for refugee status with the Department of Immigration and Citizenship (“the Department”) pursuant to the Migration Act 1958 (“the Migration Act”) (court book (CB) 1 to 34) claiming to fear persecution by reason of being an underground Christian in China.
On 22 April 2009 a delegate of the Minister refused to grant the applicant a protection visa (CB 45 to 58). On 22 April 2009 the applicant applied for a review of the delegate’s decision by the Tribunal (CB 60 to 63).
On 29 April 2009 the applicant was invited to give evidence at a hearing before the Tribunal, and was informed by that invitation that the Tribunal was unable to make a decision in her favour based on the material provided to date alone (CB 82 to 86). The applicant accepted the invitation to attend a hearing (CB 90 to 91).
At 9.30am on 14 May 2009 the applicant attended a hearing of the Tribunal to give evidence and present arguments with the assistance of a Mandarin interpreter (CB 110 to 111 at [20]). Later on that day, the applicant’s mother, also a protection visa applicant, attended a separate hearing in her own review.
On 22 May 2009, the Tribunal wrote to the applicant inviting her to a further hearing (CB 126 to 128) which she attended on 2 June 2009 and at which the Tribunal discussed with the applicant evidence given by her mother during the course of the mother’s Tribunal hearing.
On 5 June 2009, the Tribunal wrote to the applicant, inviting her to comment in writing on adverse information which the Tribunal considered could be the reason or part of the reason for its decision, namely information gained by it from the applicant’s mother, during the mother’s Tribunal hearing (CB 140 to 145). The applicant responded on 9 June 2009 (CB 148 to 150).
The Tribunal affirmed the delegate’s decision on 17 June 2009 (CB 154 to 177).

The Tribunal's decision

The Tribunal:
a)found the applicant to be a national of China and accordingly assessed her claims against China (CB 167 at [69]);
b)did not accept the applicant’s explanation for her low level of knowledge of Christianity and found it to have been contrived and advanced as a means of lowering the Tribunal’s expectations as to her knowledge and experience of religion (CB 168 at [71]);
c)found the applicant’s responses to questions about her religious activities and beliefs to be evasive and rudimentary (CB 97 at [58]) and that, whilst the applicant was capable of articulating some knowledge, such limited knowledge did not establish belief. The Tribunal was not satisfied that the applicant was a member of an underground church or that she was, in fact, a Christian (CB 97 at [59]). It also found the applicant’s attempts to highlight her mother’s educational deficiencies to be exaggerated, in an effort to reduce the Tribunal’s scrutiny of her claims and evidence (CB 168 at [72] to [73]);
d)considered the applicant’s explanation for discrepancies between her mother’s evidence and her own, being deficiencies in interpretation, and found it unnecessary to have the hearing tapes re-translated, and set out its reasons for that conclusion (CB 168 to 169 at [74(a)] to [74(e)]);
e)accepted that the applicant is from Fujian province, her father is a sea cucumber farmer and that her mother came with her to Australia as her student guardian and had a parallel refugee application on foot (CB 169 at [75]);
f)found the applicant’s account of her experiences in China to be untruthful. It did not accept that she is a Christian, her father and family had hosted an underground church, or that they had any other association with Christians, on the basis that:
i)what knowledge of Christianity the applicant had managed to demonstrate at hearing could simply have been gained in Australia;
ii)some of the applicant’s answers demonstrating Christian knowledge seemed rehearsed, and other aspects appeared improvised and not accounts of personal experiences;
iii)the applicant’s evidence of church practices seemed superficial and uncertain;
iv)there were marked differences between the applicant’s and her mother’s evidence as to the descriptions of religious artefacts in their home in China, and the identity of the elders of their church. Overall, her evidence on these topics was found to be “vague, changeable and, on significant points at odds with her mother”;
v)the applicant demonstrated a minimal ability to differentiate between her religious practice in China and Australia;
vi)the Tribunal accepted independent country information which indicated that Fujian has a large Christian population and that the applicant was probably aware of and may have visited a church but that this did not mean she was a Christian;
vii)there were discrepancies between the evidence of the applicant and her mother in respect of the alleged police raid of their home at Easter in 2005.
(CB 170 to 172 at [76] to [77])
g)found there to be compelling evidence that the applicant’s father was not an underground priest as claimed – including the applicant’s original description of him as a sea cucumber farmer who undertook occasional labour and his continued residency near the applicant’s location, and his continued presence in Fujian until May 2009 – to indicate that he was not detained or otherwise harassed (CB 172 (third bullet point) to 173.5);
h)considered the information given by the applicant’s mother to Department officers upon detention (in which she stated only financial reasons for her reticence to return to China) to indicate that refugee claims (and fears to return to China on the basis of Christianity) were settled upon as an afterthought (CB 174 at [79]);
i)found the applicant had fabricated her refugee claims relating to her experiences in China and was a witness of low credibility (CB 175 at [81]);
j)found that the applicant’s Christian activities in Australia were not undertaken to strengthen refugee claims and therefore were not required to be disregarded pursuant to s.91R(3) (CB 175 at [84]), and found that having engaged in these activities the applicant may have developed some interest in Christianity and was therefore prepared to accept, although with reservations given its credibility findings, that on return to China the applicant my be interested in continued Christian learning (CB 175 at [85] to [86]). However, the Tribunal did not accept that the applicant was, or would become, a committed or activist Christian or that she would proselytise on return (CB 176 at [86]]);
k)having regard to independent country information, the Tribunal found that there are a large number of official and unofficial churches in Fujian and a widespread tolerance such that the applicant would be able to develop her interest in Christianity without any real chance of persecution (CB 176 at [87]);
l)considered whether the applicant would face any risk or added risk by reason of her mother’s conduct in Australia or future conduct in China and concluded that she did not (CB 176 at [88]); and
m)found that, considering the applicant’s claims individually and cumulatively, she was not a Christian in China and suffered no harm and that she would not face a real chance or persecution on return to China, notwithstanding any interest she may have developed in Christianity whilst in Australia (CB 176 at [89]).

The application

These proceedings began with a show cause application filed on 16 July 2009. That application contains the following grounds:
1. The [Tribunal] Decision is affected by jurisdictional error.
2. The [Tribunal] failed to issue s.424A letters regarding why officials singled her out at 71.
I conducted a show cause hearing in this matter on 27 October 2009. While the grounds in the application are not illuminating, the decision of the Tribunal is noteworthy for the weight placed on inconsistencies between information provided by the applicant and her mother. The applicant’s mother had made her own protection visa application which was heard separately by the same presiding member on the same days as the applicant’s hearings. In each case, there were two hearings conducted on the same day but the applicants were heard separately in respect of their own applications. The Tribunal’s decision in the applicant’s case was made on the same day as the Tribunal’s decision in her mother’s case[1]. In each case the Tribunal’s decision turned significantly on the inconsistencies between the statements by the applicant and her mother.
[1] See SZNTE v Minister for Immigration & Anor [2009] FMCA 1256
Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) I ordered the Minister to show cause why relief should not be granted in relation to:
(a)whether the Tribunal fell into error in having regard to information provided by the applicant’s mother in her own application as inconsistent with the information provided by the applicant in her application as if the mother’s information was provided in relation to the applicant’s application; and
(b)whether the Tribunal fell into error in relying upon inconsistencies between evidence provided by the applicant and her mother at separate hearings in relation to separate protection visa applications.

The evidence and submissions

I have before me the court book filed on 31 August 2009. I also have before me as an exhibit[2] the Tribunal’s decision in the case of the applicant’s mother (SZNTE). At the trial of the matter on 21 December 2009 counsel for the applicant also submitted a number of documents[3]. These were not tendered as evidence but submitted in order to illustrate the written and oral submissions made by counsel.
[2] Exhibit A1
[3] a colour print of four Christian images, a print from the internet made on 3 December 2009 relating to the arrest of an underground priest in Fujian on 25 July 2005 and Refugee Review Tribunal research response CHN30274 dated 16 June 2006.
Counsel for the applicant submits that the Tribunal breached s.429 of the Migration Act in failing to afford the applicant a private hearing. While on the one hand the applicant complains of the manner in which the Tribunal dealt with the statements of her and her mother in the two applications, counsel also submitted that the Tribunal should have arranged a joint hearing or should have called each applicant in the case of the other as a witness. Counsel also submits that the manner in which the Tribunal dealt with the two applications was procedurally unfair because the applicant’s mother was relatively uneducated and had difficulty understanding questions put to her and responding to them. He submits that there were language difficulties because the mother’s local dialect of Mandarin is difficult to understand. As I understand it, the applicant submits that the difficulties her mother encountered meant that the Tribunal should not have placed weight on her evidence as pointing to inconsistencies with the applicant’s evidence.
Counsel also submits that the Tribunal did not comply with its obligations under ss.425 and 424A of the Migration Act.
In a further written submission made on 1 March 2010, counsel for the applicant asserted also that the Tribunal’s conduct of the hearings of the applicant and her mother and the use of the evidence derived from the mother breached s.420 of the Migration Act.
The Minister acknowledges that the Tribunal may fall into error if it fails to meet the requirements of s.425 of the Migration Act, for example by failing to tell the applicant what the issues are in relation to the decision under review. The Minister submits that the Tribunal is entitled to use evidence given by an applicant in a separate review as adverse information in the review of another applicant. Further, evidence which is available to the Tribunal and which is given by applicants whose experiences or claims may have something in common with an applicant’s is information that can be taken into account by the Tribunal. The Tribunal has a broad power to obtain information or further information.
The Minister also concedes that the Tribunal may fall into error if it fails to comply with ss.424A(1) and (2) but submits that there was no failure of compliance in this case.
In relation to the Tribunal’s examination of inconsistencies between the applicant’s evidence and that of another, the Minister submits that it is difficult to see how the inconsistencies could give rise to a jurisdictional error provided that the Tribunal met its obligations under ss.424A and 425. The Minister relies upon the decision of Raphael FM in SZNKO v Minister for Immigration[4] and SZIAQ v Minister for Immigration[5].
[4] [2009] FMCA 798 at [9]-[12]
[5] [2008] FCA 654 per Ryan J at [5], [8] and [12]
Counsel for the applicant drew attention to the fact that he had requested that the Minister arrange for transcript to be prepared of the two hearings in each of the applicant’s and the mother’s cases. He stated that the applicant was not able to afford the preparation of transcript and that the Minister had declined to arrange it. In view of the stress placed by counsel in his submissions on problems encountered by the applicant’s mother at her two hearings and in view of the possibility that those difficulties had not been dealt with properly by the Tribunal (with resulting doubt over whether it was open to the Tribunal to use the mother’s evidence against the applicant), I directed that transcript of the hearings in each case be obtained and that the parties have the opportunity to make further submissions on the transcript.
I invited further submissions on 21 December 2009. The following submissions were received. In supplementary written submissions filed on 8 February 2010 the Minister submitted that perusal of the transcripts of the hearings conducted in both the applicant’s case and that of her mother’s established that the level of interpretation in all four hearings was adequate. In particular, the Minister submits that the transcript shows that the Tribunal confirmed with the applicant and her mother that they could understand the interpreter at the outset of the hearings and they were invited to draw attention to any communication problems that might become apparent. While the transcript shows there were some instances of minor confusion, these were resolved at the time.
The Minister further submits that:
a)in circumstances where a tribunal sources evidence from a third party and that information is the reason or part of the reason for the Tribunal’s decision, the Tribunal is required to comply with s.424A of the Act;
b)there is no additional obligation to call that third party as a witness;
c)in the present case, there was compliance with s.424A of the Act;
d)the only information gained from the mother’s hearing which was used in a manner adverse to the applicant was put to her for comment in the Tribunal’s s.424A letter; and
e)a thorough reading of T1–T4 (inclusive) shows that the Tribunal’s reasoning in the applicant’s case was not 'infected' by any information from the mother other than that referred to in the s.424A letter.
The Minister submits that in the circumstances of this case there was no improper consideration by the Tribunal of evidence from the mother’s hearing in the course of making a decision in the applicant’s case.
In his further submissions dated 1 March 2010, counsel for the applicant took issue with the line of questioning taken by the presiding member in the mother’s hearing and in the applicant’s hearing to assert that both hearings were problematic, not only because they were conducted separately, but because the member did not ask direct questions relating to the significant factual issues bearing upon the applicant’s claims. Counsel further submits that the Tribunal’s approach was infected by inappropriate assumptions concerning cultural matters and Christian doctrine. Counsel is also critical of questions said to have been based on the presiding member’s own personal beliefs, rather than information found in the papers. Counsel further asserts that the mother’s dialect caused interpretation problems at her hearings. Finally, counsel asserts that the Tribunal erred in failing to pay regard to available country information concerning a police raid on an illegal church at Pingtan in September 2005.

Reasoning

There was no breach of s.429 of the Migration Act. In SZAYW v Minister for Immigration[6] the High Court said:
It was accepted on both sides that s 429 was enacted to benefit or protect applicants in at least two respects. It is in the nature of proceedings of the kind in question that an applicant may make allegations that could expose the applicant to a risk of reprisals, either in Australia or abroad, if they were made public. A related consideration is that applicants should feel uninhibited in presenting their cases to the Tribunal. Since the requirement of privacy is for the benefit of an applicant, it is not open to the Tribunal member to allow anyone to be present at the hearing so long as it is not open to the general public. On the other hand, persons whose presence is reasonably required for purposes of or in connection with the performance of the Tribunal's functions are clearly within the contemplation of the statute as persons who may be present at the hearing. Obvious examples may include interpreters, security officers, necessary administrative staff and witnesses, although privacy may require the exclusion of witnesses when they are not giving evidence.
Subject to the powers of the Tribunal earlier mentioned, it is consistent with the statutory purpose, and with common use of language, to treat the concept of privacy as embracing, not only agents of an applicant, but also persons whom an applicant desires to be present and thus to be made privy to what occurs at a hearing. The girlfriend referred to earlier in these reasons provides an example. If one of the applicants wanted her to be with him for moral support, and the Tribunal member had no reasonable grounds for objecting to her presence during that applicant's evidence, then her presence would not destroy the privacy of the occasion. It is unnecessary for present purposes to examine the extent of a Tribunal member's powers to exclude such a person. No such issue arises in the present case. A meeting between A and B does not cease to be private if, by mutual consent, one is accompanied by a friend or supporter. There may be cases where a Tribunal member would feel a need to impose some requirement of confidentiality upon an applicant's friend or supporter but, again, that issue does not arise in this case.
Section 429 does not necessarily prevent hearings which are wholly or partly concurrent, if that course is dictated by the objectives stated in s 420 and is consistent with procedural fairness. It is not difficult to think of cases, such as those involving separate applications by members of the one family, where that could be appropriate. In some circumstances s 429 may present an obstacle to that course; but not in the circumstances of this case.
[6] [2006] HCA 49 at [25]-[27]

Section 429 did not prevent the Tribunal from conducting a concurrent hearing in this case if it had wished to. Neither did it create any obligation on the Tribunal to arrange a concurrent hearing. The applicant and her mother had made separate applications. They did not ask that the other be called as a witness in their case. The Tribunal elected to conduct hearings in each case separately but on the same days. In my view, s.429 presented no obstacle.
Neither was there any error by the Tribunal in conducting separate hearings apart from s.429. The Tribunal’s statutory discretion to obtain information is broad. In Minister for Immigration v Katisat[7] her Honour Bennett J found that there was no jurisdictional error constituted by a Tribunal declining to call witnesses pursuant to s.427of the Migration Act[8] where requested to do so by the applicant. Given there is no obligation on a Tribunal to call a witness even when a written notice is given, there cannot be any obligation for the Tribunal to call a witness of its own motion[9].
[7] [2005] FCA 1908
[8] the RRT equivalent of s.363 dealt with in that case
[9] Voung v Minister for Immigration [2009] FMCA 433 at [80] per Scarlett FM
I accept the Minister’s submission that there is no statutory obligation on the Tribunal to call an informant to give evidence as a precondition to reliance upon that evidence. Providing that the Tribunal brings the issue to the attention of the applicant as being an issue dispositive of the review and in respect of which the applicant is able to give evidence and present arguments, and provided there is compliance with s.424A (or alternatively s.424AA), there is no error.
Subject to consideration of whether the Tribunal met its obligations to provide a real hearing opportunity (s.425) and to inform the applicant of any adverse information obtained from her mother that might be used against her and invite comment on it (s.424A) it was, in my view, open to the Tribunal to proceed as it did. In particular, I agree with the views expressed by Cameron FM in SZNTE v Minister for Immigration at [16]-[19] and [21]-[23].
In SZNTE Cameron FM considered whether the Tribunal had breached s.424A in the case of the applicant’s mother at [20] and [24]-[27]. His Honour found no breach. The letter sent pursuant to s.424A to the applicant in this case was sent on the same day as the letter in SZNTE and was in materially the same terms. The letter appropriately and adequately notified the applicant of the information she and her mother had provided. The letter also appropriately and adequately drew the applicant’s attention to the inconsistencies and discrepancies between and within that information and the relevance of the information to the review. The applicant was invited to comment in accordance with the section. She responded on 8 June 2009 on the same day and in materially the same terms as her mother. I agree with Cameron FM that the Tribunal met its obligations under s.424A. I also agree with Cameron FM that no further obligation of disclosure arose in the light of the applicant’s response, having regard to s.424A(3)(b).
I reject the applicant’s contention that the Tribunal breached s.420 of the Migration Act either by holding separate hearings for the applicant and her mother or because of the manner in which the hearings were conducted. One should not read too much into the High Court statement quoted above from SZAYW that a wholly or partly concurrent hearing may be a course “dictated by the objectives stated in s.420”. I do not think that the High Court was saying any more than that s.429 must be read in the light of s.420. Moreover, s.420 is a facultative and exhortative provision and does not add to the procedural code in Part 7 of the Migration Act[10]. The section does not impose any requirement that the Tribunal observe a particular procedure in undertaking the review of a decision. The procedural requirements imposed upon the Tribunal must be found in other provisions of Part 7 of the Migration Act or, to the extent that the operation of it is not excluded,[11] in the general law. In my view, the only relevant provision (having dealt with the asserted breach of s.424A and s.429) is s.425.
[10] See Minister for Immigration v Eshetu (1999) 197 CLR 611 at 628-629 per Gleeson CJ and McHugh J, 642-644 per Gummow J, 659 per Hayne J and 668 per Callinan J.
[11] See s.422B
The remaining issue then, is whether the Tribunal met its obligations under s.425. Cameron FM did not deal with that issue in SZNTE.
I agree with the Minister’s interpretation of s.425. An applicant for review is entitled to know of the issues arising in relation to the decision under review so that he or she is able to give evidence and present arguments relating to those issues[12]. An applicant is entitled to assume unless advised to the contrary that the issues before the Tribunal are those matters identified in the reasons of the delegate[13]. That is a requirement of procedural fairness under the general law and it remains a necessary element of a fair hearing pursuant to s.425 following the enactment of s.422B.
[12] SZBEL v Minister for Immigration (2006) 228 CLR 152
[13] SZBEL at [36]
If an issue emerges after an applicant has appeared before the Tribunal in response to a s.425 invitation, then the Tribunal must issue a further invitation to appear[14].
[14] SZHKA v Minister for Immigration [2008] FCAFC 138 per Besanko J at [103]
The Tribunal may use evidence given by an applicant in a separate review as adverse information in the review of another applicant: SZIAQ v Minister for Immigration[15] per Ryan J at [5], [8] and [12] where his Honour said:
[15] [2008] FCA 654
At each of the hearings before the Tribunal, the Tribunal pointed out to the appellant that his evidence was inconsistent with the evidence of Mr C, who had travelled to Australia with the appellant and had given evidence at a hearing of his own application for a protection visa. The appellant gave evidence that he had only met Mr C during the flight to Australia and had not known him previously because, although working in the same company, they had been employed by different subsidiaries.
…
The Tribunal found that the appellant was not a witness of truth, but had fabricated his claims in order to obtain a visa. It found implausible the appellant’s evidence that he had become aware of his business trip to Australia only one week before his departure. The Tribunal also noted that the appellant’s evidence was inconsistent with that of his travelling companion, Mr C. The Tribunal also found that there were inconsistencies in the appellant’s evidence that in September 1999 he had been summoned to report in person to the local police station at Jun Liang Chen.
…
The learned Federal Magistrate accepted that the Tribunal was obliged not to mislead the appellant about the nature of the information which it considered would be the reason or part of the reason for affirming the decision under review. His Honour had regard to a transcript of the Tribunal hearing and found that the Tribunal’s summary of the inconsistent statements of the appellant and his colleague had not been misleading, but had correctly captured their different accounts. In his view, s 424A did not require that the exact language of the original statement be reproduced; it was sufficient for a balanced account of the relevant information to be given. Turner FM considered it appropriate for the Tribunal to have put to the appellant for comment perceived inconsistencies between the appellant’s statements and those of his colleague. His Honour found that the Tribunal had not misled the appellant and had not contravened s 424A of the Act.
Where the Tribunal intends to take into account adverse information from another application in order to affirm the delegate’s decision[16] s.424A is engaged[17]. In SZNKO at [9]-[12], Raphael FM considered circumstances where two types of third party information had been used: the similarity between almost identical documents, as well as inconsistencies between the applicant’s evidence and that information. That discussion envisages circumstances where an obligation of disclosure under s.424A may not arise in relation to third party information. I do not think that this was such a circumstance but in any event there was disclosure pursuant to that section.
[16] where it is not non-disclosable information: Minister for Immigration v Kumar [2009] HCA 10
[17] MZXGB v Minister for Immigration [2007] FCA 392 at [71] and [75] per Lander J
I accept the Minister’s submissions that evidence which is available to the Tribunal and which is given by applicants whose lives, experiences or claims intersect is information which is material to the Tribunal’s statutory function and which assists it in the proper performance thereof. As the High Court said in Kumar at [22] to [23]:
What was said in the judgment of the Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs is significant for the issues on the present appeal. Their Honours stressed both the requirement of the Act that those entitled to a particular visa be granted it and that those not entitled be refused, and the corollary that information supplied by an informer be not denied to the executive branch in its administration of the legislation.
Section 359A is designed to accommodate those concerns. It affords to visa applicants a measure of procedural fairness and protection to informants, lest, without that protection, information be withheld and the Tribunal be denied material which assists the performance of its functions.
The Tribunal has regard in a range of cases to a variety of material which could be broadly characterised as being evidence of persons who are neither parties to the review in question, nor witnesses called by them or the Tribunal. For example:
a)“dob-in letters”: Kumar; Applicant VEAL[18]; and Park & Anor v Minister for Immigration [2009] FMCA 7;
b)identical evidence, statements, claims or pleadings: SZGQM v Minister for Immigration & Anor [2008] FMCA 68 at [16] to [17] per Lloyd-Jones FM; SZNKO v Minister for Immigration& Anor [2009] FMCA 978 at [12] per Raphael FM; SZJXR v Minister for Immigration & Anor [2007] FMCA 1813 per Nicholls FM at [28] to [32]; SZCUB v Minister for Immigration& Anor [2005] FMCA 495 per Smith FM; and
c)evidence of other applicants in related or relevant review proceedings: SZNKO; SZIAQ and MZXGB.
[18] [2004] FCAFC 179
The Minister concedes that where the evidence of the applicant’s mother gave rise to inconsistencies with the present applicant’s evidence given earlier that day, the Tribunal’s section 425 obligation to provide a further hearing was enlivened. The Minister submits that the Tribunal complied with that obligation, in the sense considered in both SZBEL and SZHKA by inviting the applicant to a second hearing, which was devoted to exploring the inconsistencies between the two applicants.
I am unable to distinguish this case from SZIAQ. The Tribunal ensured that the applicant understood the essential and significant issues upon which the review would turn by arranging a second hearing at which the perceived inconsistencies between her claims and evidence and those of her mother were put to her. The applicant had a fair opportunity to deal with those issues. While the applicant sought to point to interpretation problems (mainly in relation to her mother’s difficulties in communicating) the transcript does not support a conclusion that the standard of interpretation was inadequate. In any event, the applicant took up the opportunity to address issues of interpretation in post hearing correspondence which was taken into account by the Tribunal.
Counsel for the applicant sought to develop an argument of unfairness based upon the line of questioning chosen by the Tribunal and alleged cultural and religious assumptions made by the Tribunal. In my view, those submissions, if accepted, would trespass into the area of merits review. There is no suggestion that the presiding member was biased or that the Tribunal made findings or drew conclusions without regard to the evidence. In my view, while the Tribunal did ask questions directed to the genuineness of the applicant’s faith, the Tribunal’s questioning was, in the main, properly directed at testing the observable facts said to support the applicant’s claim of a well-founded fear of harm, rather than the depth of her faith.
I reject the asserted breach of s.425 of the Migration Act. There was no breach of s.425 and no procedural unfairness to the extent that the general law is not excluded by s.422B.
I find that the Tribunal’s decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 April 2010