SZNTW v Minister for Immigration
[2009] FMCA 1240
•16 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNTW v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1240 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal did not act “improperly” – Tribunal considered applicant’s request for extension of time within which to obtain evidence – applicant seeking impermissible merits review – Tribunal not obligated to make enquiries – no error in Tribunal proceeding pursuant to s.426A – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 426A |
| House v R [1936] HCA 40; (1936) 55 CLR 499 Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durarajasingham [2000] HCA 1; (2000) 168 ALR 407 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | SZNTW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1777 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 November 2009 |
| Date of Last Submission: | 23 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | - |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 24 July 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1777 of 2009
| SZNTW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 24 July 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 June 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”). He and his wife arrived in Australia on 17 September 2008 and applied for protection visas on 8 October 2008. (See Court Book – “CB”, CB 1 to CB 37, with annexures.)
Although the applicant’s wife applied as a member of her husband’s family (CB 27), she appeared to also assert a fear of persecutory harm in her own right (albeit, identical to her husband’s). At least this is how her claims were presented in her husband’s (the applicant’s) statement accompanying the protection visa applications.
Claims to Protection
In his statement (CB 33 to CB 34) the applicant claimed that he and his wife built up a profitable computer network consultancy business in China. He claimed that “certain government officials” harassed them and their employees to: “… facilitate the extortion of property with their power.”
The applicant complained to, presumably, other government bodies. This caused retaliation by the corrupt officials, who caused physical damage to their office, took equipment, and denied them utilities. This resulted in: “… the company lose huge of profit.”
The applicant claimed that he and his wife were also violently beaten and that their residential property was: “robbed and damaged.”
The applicant and his wife sought protection in Australia.
The Delegate
The delegate understood that the applicant and his wife claimed to have been victims of corrupt officials who sent “rogues” to harm them and their employees. That the applicant complained to relevant government authorities, but nothing was done. In fact, the violence against them increased (CB 69).
The delegate formed the view that the applicant’s, and his wife’s, claims lacked the necessary Convention nexus. Their failure to attend an interview, to which they had been invited, meant that the applicant and his wife did not take up the opportunity to satisfy the delegate to the contrary view. The applications were, therefore, refused. The applicant’s wife’s application was refused because of the refusal of the applicant’s application, this being the relevant criterion for the visa for which she had applied (CB 71 to CB 73).
The Tribunal
The applicant (and his wife) applied to the Tribunal for review on 9 January 2009 (CB 74 to CB 77).
The applicant and his representative (a migration agent – see CB 84) attended a hearing before the Tribunal on 5 March 2009. The wife did not attend (CB 87). The Tribunal’s account of what occurred at the hearing is set out in its decision record. (See [39] at CB 123 to [95] at CB 133.)
Following the hearing, by letter dated 8 April 2009, the Tribunal invited the applicant’s comments on certain information which it said, subject to his comments, would be the reason, or part of the reason, for affirming the decision under review (CB 98 to CB 100).
This information was essentially that in his written statement, the applicant claimed that he and his wife had been beaten violently in China. Yet despite opportunity at a medical examination in Australia, the applicant denied any history of torture or trauma.
An identical letter was sent by the Tribunal on 15 April 2009 (CB 101 to CB 103).
On that date the Tribunal also gave the applicant’s wife the opportunity to comment on information which it said would be the reason, or part of the reason, for affirming the decision under review (CB 104 to CB 109).
In addition to the information which had been put to the applicant for comment, the applicant’s wife was invited to comment on other information in her husband’s statement, answers that he gave to certain questions in his protection visa application, and evidence that he gave to the Tribunal at the hearing.
The applicant responded in writing by letter dated 29 April 2009, but received by the Tribunal on 6 May 2009 (CB 111 to CB 113). Although the letter is said to have been signed by both the applicant and his wife, the language used would strongly suggest that it was written by, or from the perspective of, the applicant. It commences with:
“Dear Magistrate
Hello. I have received the letter forwarded to me by Lawyer Liu. Thank you very much for giving me and my wife another chance to make explanation. Please allow me to make the following explanation.” (CB 111)
The letter continues as a statement from the applicant only.
In essence, and for the most part, the letter repeated factual claims made in support of the application for the visas.
The applicant did ask for more time to obtain “evidence” from China to show that he and his wife had been treated at a hospital.
The Tribunal refused this request by letter dated 8 May 2009 (CB 114 to CB 115), but it said that it would take into account documents received up to the date of decision. (Subsequently, this turned out to be 22 June 2009.)
In relation to the applicant wife, and her non-attendance at the hearing, the Tribunal did consider whether she should be given another opportunity to attend a hearing. In the circumstances and, to some extent, based on the evidence given by the applicant, the Tribunal decided to proceed pursuant to s.426A of the Act without giving her a further opportunity to attend a hearing. (See [114] of the decision record.)
The Tribunal found that there was no medical evidence to say that she could not attend, but that she had, on the evidence of the applicant, decided to go to work instead. (See [109] to [113].)
The Tribunal affirmed the delegate’s decision because it comprehensively rejected the credibility of the applicant’s (the applicant husband’s) claims, which led it to reject the factual account of what he said had occurred in China because of significant inconsistencies and omissions in his claims and evidence.
Given the wife’s failure to attend at the hearing, it could not be satisfied as to her claim to fear persecutory harm. Given that she had applied as a member of her husband’s family, and given that he had not been successful, the Tribunal found that she did not meet the critical requirement set out in s.36(2)(b) of the Act. (See [165] at CB 152.)
The Application To The Court
The grounds of the application are:
“1. I’m not agree RRT Decision.
2. I need seeking Australia protection.
3. I Can’t Come back China.”
[Errors in the original.]
In a statement attached to an affidavit said to have been made on 24 July 2009, filed at the same time as the application, the applicant repeats much of the factual account that he had put before the delegate and the Tribunal.
The applicant also states that he did not understand why the “judge” (in context, the Tribunal Member) did not give him the opportunity to provide documentary evidence in support of his claims.
Before The Court
At the hearing, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language.
Ms S Sirtes of counsel appeared for the first respondent. Written submissions had been filed on behalf of the Minister.
It should be noted that only the husband has made an application to the Court. However, in his affidavit, which was filed at the time of the making of the application, he states, amongst other things:
“Therefore I have objection to this and request that my wife and I be given the full right to make explanation and provide evidentiary documents. I also plead with the judge to support our appeal this time.”
Clearly, the applicant is under some misapprehension as to the status of the Tribunal. (See also [27] above.) But putting this to one side, the respondent suggested that this may be considered as an application under Part II of this Court’s Rules (Federal Magistrates Court Rules 2001 (Cth)) for the applicant’s wife to be joined as a party.
At the commencement of the hearing I sought to ascertain from the applicant whether there was some intention that his wife be joined as a party to these proceedings.
The applicant was unable to assist the Court with any clarity on this issue. He produced a letter, which he said was written by his wife in Mandarin characters. The interpreter translated the document for the benefit of the Court. The letter asserted that the Tribunal did not ask the applicant’s wife to attend the hearing before it, that she was a “victim”, and had not been given the opportunity to speak, that the circumstances in China were “getting worse”, and that the applicant’s wife wanted “living rights”.
I pressed the applicant for a clear statement as to whether he was able to speak on behalf of his wife and, if so, whether he was seeking that she be joined as a party to these proceedings. I adjourned for some little time to enable the applicant to telephone his wife (who was in Tamworth, New South Wales) to see if this may have produced any clarity in relation to this situation.
On resumption the applicant advised that he had spoken to his wife. I understood that he had no authority to speak for her. He stated that she reserved: “the right to make an application to this Court.”
In these circumstances (I understood that no application was being made as to joining her as a party), it was not appropriate that the applicant’s wife be joined as a party. Nor was it otherwise appropriate that she be joined. While the applicant before the Court expressed some grievance with the Tribunal’s decision on her part, he made no explicit application that she be joined and, as best as I understood his position, he had no authority to speak on her behalf.
If the applicant’s wife chooses to make some separate application to the Court, then that can, of course, be dealt with, as appropriate, at that time. But at the time, no such application had been made by her, or on her behalf, and nor was I satisfied that it was appropriate that she be joined as a party to these proceedings.
The Applicant’s Submissions
The applicant made a number of complaints by way of submissions:
Complaint 1
He complained that the Tribunal engaged in “improper behaviour”. The applicant’s submissions in this regard can, at best, be described as confused.
a)He claimed that at the hearing the Tribunal asked him why his wife was not in attendance. He said that he had told the Tribunal that her health was poor, and that she had a tendency to “pass out” when she reflected on the suffering that she had endured. He submitted that the Tribunal should have taken this into account, and should have subsequently “asked her to turn up”.
b)Further, the applicant also submitted that the Tribunal Member seemed to feel that his wife’s absence amounted to “disrespect” towards the Tribunal.
c)He submitted that the Tribunal prevented his wife from attending the hearing, and that this was the “improper behaviour” to which he referred. When asked to explain this, the applicant stated that after the hearing the Tribunal sent a letter, that a response was made to explain the circumstances of his wife’s non-attendance, and that, while it was his “fault” that she was prevented from attending, it was nonetheless “improper” on the part of the Tribunal Member.
d)The Tribunal told him that he would have no chance of success.
Complaint 2
He submitted that at the hearing the Tribunal asked him to present evidence regarding persecution in China. He needed to ask relatives and friends to collect this evidence on his, and his wife’s, behalf. They needed time, in particular, because there was a national holiday in China at that time. The Tribunal refused the request for an extension of time. Further, that prior to “23 June”, he was asked to collect material, there was a riot in the relevant area in China, and that this added to his difficulties.
Complaint 3
He also submitted that when he and his wife attended at a “medical check up” in Australia (in the course of making their application for protection visas), the applicant asked a “Chinese student” to attend the medical facility with them because they could not speak English. That, during the course of this “medical check up”, they were asked by the doctor if they had been hospitalised. The doctor asked whether this had been done “recently”. The answer provided by the applicant and his wife was that they had not been so hospitalised. The applicant submitted that this was a truthful account, whereas he was told by the Tribunal that he was lying. He submitted that the overseas Chinese student could have told the Tribunal that they were telling the truth.
Complaint 4
The applicant submitted that his claims were that between 2001 and 2004 he ran his company, whereas the persecution that he claimed to have been subjected to had occurred in 2005 to 2007. In 2005, he described it as “harassment”, in 2006 this escalated to “beatings”, and in 2007 this escalated to “beatings at home”. That there was an escalation of persecution in this regard, and that the Tribunal “got mixed up in time”.
Complaint 5
That sometime after 5 July 2009 his sister, who was in China, told the Public Security Bureau (“PSB”) that he had applied for refugee status, and that the PSB said that this was “treason”.
Complaint 6
The Tribunal made a subjective decision without “concrete material or witness”.
Consideration
It is convenient to deal first with the applicant’s complaints as expressed at the hearing before the Court.
The applicant’s first complaint can best be properly understood as a failure by the Tribunal to provide his wife with an opportunity to appear before it, or that it improperly exercised its discretion pursuant to s.426A of the Act by not providing her with another opportunity to give evidence at a hearing.
Ms Sirtes submitted that the applicant’s submission appeared to contradict what had been read out from the letter which was said to be from the applicant’s wife, in relation to her non-attendance. There the explanation for the non-attendance was said to be that she had no knowledge of the Tribunal hearing, and that she held the applicant responsible for her non-attendance.
The material before the Court reveals, relevantly, the following. The applicant and his wife applied for review by the Tribunal (CB 74). They both signed the application form as applicants (CB 77). The address for service was that of an authorised recipient (CB 76). This person was either the migration agent, who was subsequently appointed as the applicant’s representative (CB 84) or, given the difference in the first name (“Cindy” or “Ying”), a person who nonetheless worked for the same organisation, given that the address provided for the authorised recipient is identical to the address provided for the migration agent (CB 76 and CB 84). (Or it may be that “Cindy” is the anglicised version of “Ying”.)
Whatever the case, both applicants before the Tribunal were invited to attend a hearing scheduled for 5 March 2009. The letter was dated 4 February 2009, and sent by post to the applicant’s authorised recipient for that purpose (CB 80). A “Response to Hearing Invitation” form was received by the Tribunal on 23 February 2009. That form, dated 20 February 2009, advised the Tribunal that the applicant wished to attend the hearing, that the family member (in context, the applicant’s wife) did not wish to attend, and that the applicant’s adviser would also attend (CB 82). This appeared to be the same person as the authorised recipient (CB 95 to CB 96).
The hearing was held on 5 March 2009. The applicant and his adviser attended. The applicant’s wife did not attend (CB 87).
The Tribunal’s account of what occurred at the hearing is set out in its decision record. Paragraphs 42 to 46 are relevant to the issue of the wife’s non-attendance.
The applicant’s evidence on this matter before the Tribunal was, relevantly, that his wife became upset when she was asked to talk about her torture in China, and that: “… she did not want to attend the hearing today” ([43]). His evidence was that his wife was at work at the time of the hearing, and that she felt “sick” ([41] and [40]).
Ultimately, the applicant was reported as saying:
“45 The first named applicant stated that the second named applicant made a decision not to come to the hearing. The Tribunal asked the first named applicant if he was giving evidence on behalf of both of them. The first named applicant stated that he will only speak on his own behalf.”
The Tribunal pressed the issue with the applicant:
“46. The Tribunal informed the first named applicant that it has to decide whether to give another opportunity to the second named applicant to come to another hearing. The first named applicant stated that the second named applicant knew that the hearing was on today. The Tribunal asked if the second named applicant chose to go to work. The first named applicant stated that it was he who asked her not to come. He confirmed that the second named applicant knew that the hearing was on. The Tribunal commented that the second named applicant was well enough to go to work and informed the first named applicant that it was not going to hold another hearing in these circumstances. The Tribunal informed the first named applicant that it was not going to give the second named applicant another opportunity to come to a hearing. The applicants were aware that the hearing was on and the second named applicant had gone to work instead of coming to the hearing. Also, there was no medical evidence about her health.”
In its analysis on this issue the Tribunal noted that it had invited both applicants to attend the hearing to give oral evidence (at [109]). That the first named applicant had responded, and attended the hearing. The second named applicant (that is, the applicant’s wife) did not attend, and did not respond to the invitation.
The Tribunal considered the applicant’s evidence in relation to the non-attendance of his wife ([110]). Further, it took into account the evidence contained in the applicant’s letter dated 29 April 2009 (a date that was well after the hearing) that the applicant wife, in particular, was “psychologically traumatised”.
While the Tribunal accepted that the applicant may wish to protect his wife, it did not accept that the reasons given for her non-attendance were acceptable, given that the Tribunal had to determine whether the applicants were refugees, and that the applicant wife chose not to attend the hearing, but went to work instead ([111]).
Further, it noted the applicant’s evidence that his wife had made the decision not to come to the hearing, that she knew that the hearing was on, and that he had asked her not to come. Yet, when he was asked if he would be giving evidence on her behalf, he stated that he would only speak on his own behalf ([112]).
Ultimately, the Tribunal considered these claims and explanations ([113]), and decided ([114]), pursuant to s.426A, to exercise its discretion not to provide the applicant wife with a second opportunity to appear before it. It proceeded to make a decision on the basis of material already before it.
The applicant’s submissions to the Court, including what was said to be contained in the letter from the applicant’s wife to the Court, in key aspects, are inconsistent with the evidence put before the Tribunal. In the letter he claims that she did not know of the hearing before the Tribunal, and that that was the explanation for her non-attendance. This led the applicant to submit to the Court that he felt that the Tribunal took the view that this was disrespectful towards it, and that this explained its subsequent action.
The applicant’s complaint before the Court that the Tribunal erred by failing to enable a further opportunity for his wife to appear before it must be rejected.
The critical issue is the material, and evidence, before the Tribunal in relation to the question of the applicant’s wife’s non-attendance, and whether the Tribunal’s exercise of its discretion to proceed, without giving her a further opportunity to appear before it, was appropriate in the circumstances.
It is clear that, on what was before the Tribunal, a clear inference can be made that the applicant’s wife knew of the time, date, and place of the scheduled hearing. This was consistent with the applicant’s evidence before it. The material before the Tribunal, as outlined above, in my view, provides a probative basis for the Tribunal to find that it was appropriate in the circumstances to proceed without giving the applicant’s wife another opportunity to appear. There was nothing before the Tribunal from the applicant’s wife to show that she wanted such an opportunity. Nor did her husband make any such request on her behalf.
The Tribunal’s reasoning reveals that it gave careful consideration to this issue. Its decision to exercise its discretion in the way that it did cannot in any way be said to be capricious or arbitrary. It plainly set out all of the relevant factors, and exercised its discretion in a way that was consistent with relevant authority (as Ms Sirtes submitted, for example, House v R [1936] HCA 40; (1936) 55 CLR 499).
I cannot see error in how the Tribunal approached this question. The applicant’s inconsistent submissions before the Court do not assist him in showing any error on the part of the Tribunal in this regard. Any allegation of impropriety on the part of the Tribunal can only be squarely rejected, given the evidence before the Court.
Complaint 2
The applicant also complained that he had been asked at the Tribunal hearing to present evidence regarding his persecution in China. He submitted that he needed to ask his relatives and friends to collect such information on his behalf. He submitted that they were pressed for time because it was a national holiday at the time in China, and there had been a riot in a “key area” in China from which the material was to be collected.
The applicant complained before the Court that, in these circumstances, the Tribunal should have provided the extension of time that he had requested so that he could have provided his corroborative evidence.
It may be that the applicant’s reference to what he said he was asked at the hearing is a reference to what appears in the Tribunal’s account of what occurred as set out at paragraph 79. The Tribunal reports that it asked the applicant if he had evidence that he had lodged a complaint with the police in relation to his claim that in September 2006 people who were acting on behalf of the local authorities had attacked him and his employees in his shop, and had seriously injured some of the employees. (See [74] to [78]).
Ultimately, the applicant told the Tribunal that he had reported the attack to the police by way of a written complaint. The Tribunal asked if he had any documentary evidence of the lodgement of the complaint. The applicant said that he had sent a letter, but that: “He did not hear back from the government” (at [79]).
As set out above ([14] to [16]), the Tribunal wrote to the applicant, and separately to his wife seeking comments on certain information (CB 101 to CB 109).
The applicant and his wife responded by letter dated 29 April 2009 (received by the Tribunal on 6 May 2009 – CB 111 to CB 113). The letter largely addressed matters relating to the factual account of what was said to have occurred in China, and briefly, the “health check” in Australia.
As its conclusion the letter stated:
“… Because my wife and I are now in Australia, we can only ask our relatives and friends in China to gather evidence for us. We both plead with the magistrate to allow us some extra time so that we can gather and provide as much evidence as possible to the court” (CB 113).
(In context, the reference to “magistrate” and “court” is to the Tribunal.)
By letter dated 8 May 2009 the Tribunal refused the request for an extension of time to provide further documents. But it said that it would take into account any documents received before it made its decision (CB 115). I note that the Tribunal did not make its decision until some time later, on 22 June 2009.
Ms Sirtes submitted that the Tribunal did consider the applicant’s request (see, for example, [104] of its decision record). That there is nothing to show that the Tribunal’s decision was capricious, or that it improperly considered this request.
I agree with Ms Sirtes.
First, it must be noted that the applicant’s request, as expressed in his, and his wife’s, letter (CB 113), is at best expressed in general terms as to what these documents may be.
On one view, it may be that the applicant and his wife meant that they wanted more time to gather documents relating to their claimed hospitalisation in China in 2006. That is, the: “diagnosis reports from the hospital.” If that is the case, then while the Tribunal refused the request for more time, it also said that it would take into account any documents received before it made its decision. The applicant and his wife provided nothing to the Tribunal between 8 May and 22 June 2009. In practical terms, they had six weeks within which to provide this hospital report, or indeed, any other relevant documentation.
Second, before the Court, the applicant claimed that he was reliant on relatives to obtain documents, who were pressed for time because it was a national holiday in China. He then stated that there had been a riot in the relevant area, presumably at the location of the hospital which caused the difficulties. Even accepting these submissions made by the applicant, they do not explain any failure to obtain the relevant documents in the six weeks (at least), that were available to him.
Third, if the applicant’s, and his wife’s, request was for an extension of time to provide documents in general, the lack of specificity places the Tribunal’s decision not to grant the extension in the circumstances well within the scale of what would be considered reasonable. This is particularly so in circumstances where the applicants themselves did not put any time scale to the Tribunal as to how long it would take to obtain these documents. The applicant and his wife did have sufficient time to enable friends, and relatives, to provide these documents to the Tribunal. That they did not do so, without further explanation, does not reveal error on the part of the Tribunal.
Fourth, the reference to the Tribunal’s questions to the applicant, as reported at paragraph 79 (whether he had documentary evidence of the lodgement of complaints which he said that he had made to the police), should not be read as some expectation on the part of the Tribunal that there needed to have been some corroboration of the claims by the applicant, before the Tribunal would accept his claims.
In Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041(per Hill J at [16]) the Court stated that any requirement by the Tribunal of the necessity for an applicant to substantiate claims by providing corroborative evidence is an error of law.
When plainly read, the Tribunal’s reasons for its decision reveal that the applicant’s factual claims were not rejected because of any lack of corroborative documentary evidence, but because of significant and persistent inconsistencies in his evidence and claims.
This complaint does not reveal error on the part of the Tribunal.
Complaint 3
The applicant also complained before the Court about the Tribunal’s finding arising out of an inconsistency in his claims about whether he and his wife had been hospitalised in China, as between what he was reported to have told the doctor at the medical examination in Australia, and his explanation for his having said that he had not been hospitalised, and the applicant’s claims in his protection visa application that he and his wife had been violently beaten and hospitalised.
This was one of the subjects of the Tribunal’s letters to the applicant and his wife. (See CB 99 and CB 102, in relation to the applicant, and CB 105 in relation to his wife.)
It was also the subject of discussion with the applicant at the hearing. (See [81].)
The matter of the applicant’s inconsistent evidence, in relation to hospitalisation in China, was only one of a number of inconsistencies in his evidence and claims found by the Tribunal.
The applicant’s submissions before the Court were all matters that were put in explanation to the Tribunal after it raised its concerns about his inconsistent claims and evidence, both at the hearing and, subsequently, in its letters. The Tribunal considered the applicant’s explanations, but was not persuaded. (See, in particular, [134].) The Tribunal dealt with all of the matters that the applicant now seeks to put before the Court, including that they had attended the medical examination in Australia with “the Chinese student”. (See [131].)
In the circumstances, I agree with Ms Sirtes that the applicant’s submissions now, in repeating what he had put by way of explanation to the Tribunal, is really an attempt to engage this Court in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The Tribunal’s finding in this regard (and, it must be said, its finding in relation to inconsistencies on other matters) was plainly open to it on what was before it. The Tribunal gave cogent and comprehensive reasons for its disbelief of the applicant’s claims and, in particular, for its findings as to the inconsistencies in his evidence. This complaint does not assist the applicant in showing error on the part of the Tribunal.
Complaint 4
The applicant also complained before the Court that the Tribunal “got mixed up in time” in relation to the applicant’s chronology of the escalation of what he claimed to be persecutory harm in China.
The applicant stated that, even though he could not speak English, he checked the Tribunal’s decision and arrived at this conclusion. But he did not provide the Court with specifics beyond the outline of the: “annual escalation of persecution.”
In the absence of any specificity, and particularly having regard to the Tribunal’s careful and comprehensive consideration of the applicant’s claims, I cannot see that this rises above a request for impermissible merits review. The applicant is clearly repeating evidence before the Tribunal as to the relevant events that were said to have occurred, in particular, in the years 2005 to 2007. On any plain reading of its decision record, I cannot see that the Tribunal was confused as to the applicant’s evidence in this regard. It dealt with all of his claims in detail. It is difficult to escape the conclusion that the applicant’s unsupported claim now, that the Tribunal was confused, is some belated attempt to explain the inconsistencies which the Tribunal found in his own evidence. This also does not assist the applicant in showing jurisdictional error on the part of the Tribunal.
Complaint 5
The applicant also submitted before the Court that his sister in China had reported to the “PSB” that he had made an application for refugee protection in Australia, and that they had responded that this was “treason” on the part of the applicant.
First, it should be noted that this claim is made by way of submission, and not provided in any evidentiary context.
But, in any event, even taking the applicant’s submission at face value, if this is some attempt to create a “sur place” claim, then it is not successful in revealing jurisdictional error on the part of the Tribunal. The applicant’s submission before the Court was clearly that the applicant’s sister had had this claimed conversation with the PSB some time on, or after, 5 July 2009. This clearly post dates the Tribunal’s decision which was made on 22 June 2009.
In these circumstances, it cannot be said that the Tribunal failed to consider a claim, or an integer of the applicant’s claim, as plainly this report to the PSB had occurred after the Tribunal’s decision. In these circumstances, no error is revealed.
Complaint 6
Before the Court the applicant also complained that the Tribunal’s decision was based only on the material before it, and not on the evidence of a “concrete witness”. The Tribunal’s decision, therefore, was said to be “subjective”.
I can only agree with Ms Sirtes that the applicant’s complaint misconceives the nature of the task facing the Tribunal in the exercise of its jurisdiction in this regard. It is for the applicant to put forward his evidence, materials, and any documents in support of his claims. The Tribunal’s obligation is to consider each claim, and each aspect of the claims, made to it. It is not for the Tribunal to make out the applicant’s claims, or to search for witnesses who may, or may not, support the applicant’s position.
The relevant statutory regime requires the Tribunal, on considering what is before it, to reach a requisite level of satisfaction that the applicant’s claims fall within the definition of “refugee” as, in effect, set out in Article 1A(2) of the Refugees Convention, such that the protection visa must be granted. (See ss.65 and 36(2) of the Act – SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.)
What the applicant seems to overlook is the fact that he was his own witness before the Tribunal. The Tribunal found his evidence to be deficient, given the inconsistencies and the unsatisfactory explanations for those inconsistencies. On what is before the Court, it was open to the Tribunal to make such findings – findings that were given with comprehensive reasons. There is no obligation on the Tribunal to search for witnesses (“concrete”, or otherwise), such that it could reach a positive finding in the face of unsatisfactory evidence provided by the applicant himself.
I cannot discern error in the Tribunal’s analysis in this regard. This complaint also does not assist the applicant in showing error on the part of the Tribunal.
Additional Complaints
Before the Court the applicant also asserted that he had not sought “professional” guidance before the Tribunal. In particular, that “Cindy Liu”, to whom reference is first made in the Court Book as the applicant’s authorised representative (see CB 76), was not an agent, but a translator.
It is not clear what the applicant hoped to achieve by making this submission. Whether the applicant chose to enlist the aid of a “professional” migration agent, or a “translator”, or even a friend, is a matter for the applicant.
If there was any deficiency in any such assistance by any person who was a “translator” only (when he engaged to assist him), then this would not reveal error on the part of the Tribunal.
But the unsatisfactory nature of the applicant’s submissions before this Court, which appear to mirror his inconsistent and unsatisfactory evidence to the Tribunal, is exemplified by this submission. Contrary to the applicant’s submissions, the evidence before the Court shows that Ms Liu is plainly a registered migration agent (see CB 84). The applicant’s own appointment of her as his representative reveals that she is a registered migration agent. She clearly assisted the applicant before the Tribunal, and as his representative, attended at the hearing with him (CB 87).
In addition, in his letter of 29 April 2009 to the Tribunal in response to its letter seeking his comments, the applicant refers to his agent as: “Lawyer Liu”. (See CB111.2.). There is nothing in the material before the Court to suggest that she was “only a translator”. (I note that I would reject any implication that any such occupation is of lesser prominence.)
In any event, there is no evidence before the Court that Ms Liu provided any deficient service to the applicant as a migration agent. There is certainly no evidence that she acted in any way such as to suggest that her actions vitiated the process before the Tribunal (with reference to SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35).
The Grounds
None of the grounds as stated in the application assist the applicant in showing error on the part of the Tribunal. (See [25] above.)
The Affidavit
Similarly, the applicant’s statement attached to his affidavit filed at the time of his application, seeks to put his factual claims to fear persecutory harm in China before this Court. (See [26] above.) This Court cannot assist him in this regard. This Court has no power to conduct a review on the merits, the very task with which the Tribunal is charged by the Act.
For the applicant to succeed, jurisdictional error would need to be discerned in the Tribunal’s decision. I can well understand that the applicant is aggrieved with the Tribunal’s decision (ground one). But his disagreement with it does not reveal error, let alone jurisdictional error, on the part of the Tribunal.
That the applicant in his grounds asserts a need for protection in Australia, and that he cannot go back to China (grounds two and three), can only, even at its highest, be understood as a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The applicant plainly misconceives the role and powers of the Court in asking that his “appeal be supported this time”.
The applicant also says in this statement:
“I made clear explanations about these questions in my application report, review statement and at the court.”
(In context, the Tribunal.)
This again can only be seen as an assertion that what he told the Tribunal was true. This does not assist in revealing error for the reasons already referred to above. The Tribunal rejected the credibility of the applicant’s factual account for reasons which were plainly open to it on what was before it.
The statement also makes reference to a matter pressed by the applicant before the Court. That is, the claim that the Tribunal asked him for documentary evidence, yet refused his request for an extension of time within which to provide it. This has already been dealt with above, and has been rejected as a basis for revealing error on the part of the Tribunal.
The applicant’s further complaint that the Tribunal told him that it was not necessary to submit this documentation must also be rejected. The Tribunal’s written response to his request is reproduced at CB 115. No such statement is made. The Tribunal simply rejected the request and advised that, nonetheless, any documents submitted to it, up to the date of decision, would be taken into account. As already set out above, given the time otherwise available to the applicant, this could not be said to have been unreasonable.
In the statement the applicant also says that he was about to submit this evidence. He provides no satisfactory explanation as to why he did not do so in the six weeks that were available to him. The Tribunal’s letter is dated 8 May 2009 and was sent by registered post to the authorised recipient. The decision was made on 22 June 2009.
As to his request that he and his wife be given the “full right to make explanation”, presumably in support of their claims, this opportunity was provided before the Tribunal.
I cannot see error in the Tribunal proceeding pursuant to its discretion in s.426A in relation to the applicant’s wife. The Tribunal gave cogent reasons for doing so, in circumstances where the letter of invitation complied with all the relevant statutory and regulatory requirements. If the applicant’s wife had wanted a “full opportunity” to be heard (as it is asserted by the applicant in his statement attached to his affidavit filed at the time of his making his application to the Court), then she should have attended the hearing instead of going to work. The Tribunal was entitled to find that, on what was before it, it could not reach the required level of satisfaction that Australia owed her protection obligations.
Ultimately, findings of fact, including findings on credibility, are for the Tribunal to make in the exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durarajasingham [2000] HCA 1; (2000) 168 ALR 407).
For the reasons which it comprehensively explained, the Tribunal found the applicant’s evidence to lack credit. This was a finding open to it on what was before it.
In relation to the applicant’s wife, while the Tribunal considered her claims to be a refugee in her own right, it also ultimately addressed the relevant criterion to the application that she had made. That is, that she sought a protection visa on the basis of her familial relationship. (See [165] at CB 152.)
Nor can the applicant claim to have been denied procedural fairness. The Tribunal, on the only account of what occurred at the hearing before the Court, quite clearly, and repeatedly, put its concerns about his evidence to him. (See [56], [62], [65], [74], [83] to [85], [87] to [89], [91] to [94].) It clearly met its procedural fairness obligations in this regard pursuant to s.425. (See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.)
Further, the Tribunal wrote to both applicants and put certain information to them for comment. While some of the “information” dealt with inconsistencies in the applicant’s claims, and therefore was not “information” for the purposes of s.424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] to [18]), no error is revealed in the Tribunal putting this to the applicants for comment.
Conclusion
In all, for the applicant to succeed before the Court, jurisdictional error (at least) would need to be found in the Tribunal’s decision. I cannot discern such error. This application is therefore dismissed.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 16 December 2009
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