SZNYF v Minister for Immigration
[2012] FMCA 1034
•16 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNYF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1034 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it had failed to give effect to antecedent orders of the Federal Court of Australia, had failed to consider an alternative claim which the applicant could have made and by reason that a reasonable observer might have apprehended it to have been biased. |
| Migration Act 1958, ss.91R, 424A, 430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Soliman v University of Technology, Sydney [2012] FCAFC 146 |
| First Applicant: | SZNYF |
| Second Applicant: | SZNYG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2963 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 November 2012 |
| Date of Last Submission: | 1 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2012 |
REPRESENTATION
| The Applicants appeared in person |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2963 of 2011
| SZNYF |
First Applicant
| SZNYG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of China and are husband and wife. The first applicant arrived in Australia on 13 December 2008, the second applicant having arrived on 22 November 2007 as guardian of the applicants’ second son who had come to Australia to study. On 20 January 2009 the first applicant lodged an application for a protection visa alleging that she feared persecution in China because of her religion. The second applicant, who is the first applicant’s husband, was included in that application as a member of her family unit. On 29 April 2009 a delegate of the first respondent (“Minister”) refused the applicants’ applications for protection visas. The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicants. A previous Tribunal decision dated 25 August 2009 was quashed by order of the Federal Court of Australia made on 10 August 2010.
In these judicial review proceedings the Court cannot rehear the applicants’ applications for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicants’ claims for protection visas are set out on pages 4-51 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The first applicant made the following claims in a statement lodged with her protection visa application:
a)she was from a Catholic family and as a result she and her family had suffered persecution by the Chinese government. Her family’s involvement in a local family Catholic Church began in June 1989.
b)she and her mother-in-law had attended mass almost every weekend. Their family church held its services at different church members’ homes because they were constantly harassed by the local government;
c)in October 2006 their church meeting was raided by the police. The police arrested the priest and injured several members of the church when they used their batons on them. The police wrote down the names and addresses of those present and warned them that they would be punished if they were caught attending a home church again;
d)she did not attend an official church because she had heard that the ministers were appointed by the government and taught things which were different from those in the Bible;
e)the local officials continued to harass them after the raid and they had to change their meetings to late at night during public holidays and ceremony dates because they received closer scrutiny on those occasions. The local officials would visit her home unexpectedly and ask about her activities;
f)after the raid the local government informed her workplace about her church activities and sent people to investigate her there. People at her company told her that the local government had told them that she would be dismissed if she behaved inappropriately;
g)when the government watched her and she could not attend church, she worshipped at home with her family;
h)after her first son was born she was forced to have a birth control operation but she became accidentally pregnant in October 1990. By that time she was a member of a church and abortion was against her beliefs;
i)she went into hiding but was located by government officials when she was eight months pregnant and was taken to a hospital to have an operation. She escaped from the hospital and hid at a relative’s house where her second son was born soon after;
j)because of her police record, the local government refused to issue her with a passport. She had to bribe two officials and the passport processing took over a year; and
k)her husband had been attending church in Australia before she arrived. She had attended a Chinese Catholic Church in Flemington.
Department
At a departmental interview on 31 March 2009 the first applicant made the following claims:
a)her husband was not present when her church group was raided;
b)following the raid, when they practised, the church members kept a guard at the gate of each home in which they practised, including her own;
c)before the raid her work performance had been rewarded and she had been regarded as the best employee but after the police attended her workplace, no matter how hard she worked, her performance was no longer recognised;
d)less than thirty days after she gave birth to her second child, she was taken to undergo tubal ligation and was fined RMB10,000. She also had to pay some fines in order to have her son included in the household registration and the authorities came to her house from time to time to cause trouble;
e)to get her passport she had bribed two local government officials for a statement saying that she had no problems with the officials;
f)she received her passport in February 2008 but only applied for a visa in November 2008 because she had been trying to get back some money from her investments;
g)she had been attending church every week in Australia; and
h)she could not move from her home area because her job and family were there. The applicant then said she had telephoned her workplace two months earlier and was told that she no longer had a job with them.
At the interview the first applicant produced a letter from her parish priest in Scone dated 15 February 2009 stating that the applicants had been regularly attending church. The first applicant also attached a letter of support from one of her fellow church members in China dated 23 February 2009 stating that the police had raided one of their gatherings “at the home of a fellow church believer” in October 2006.
First Tribunal
Prior to the hearing with the first Tribunal, the first applicant sent a statement dated 10 July 2009 claiming:
a)relocation in China was extremely difficult and sometimes even impossible because of the household registration system; and
b)when the police informed her employers about her underground church activities she was demoted. Soon after she fled China, she was told by a co-worker that she was about to be dismissed and in April 2009 her family received a letter from her employer formally dismissing her.
The first applicant attached the following documents to her statement:
a)a dismissal letter from her former employer dated 19 April 2009;
b)a summons from the Public Security Bureau (“PSB”) addressed to her and dated 15 April 2009 requiring her to report to the police on 21 April 2009;
c)letters of support from her mother-in-law and her mother-in-law’s friend; and
d)a baptism certificate dated 8 February 2009, stating that she had been baptised on 1 May 2005.
The applicants appeared before the first Tribunal on 23 July 2009. The first applicant made the following claims:
a)her son had not attended the Tribunal’s hearing because she had not known he was required to. The applicant then said he had a job and she had told him to work so that he could cover his study costs;
b)in China her husband had attended church infrequently because of work commitments and her sons were not regular churchgoers;
c)she had waited until 2005 to be baptised because her priest had required her to pray morning, noon and evening and she had been unable to convince him of her readiness for baptism. This was because she worked seven days a week and was always on call;
d)when in 2006 the police raided the underground church gathering in her home, her husband and children had been absent. Her husband returned at 1 o’clock the next morning. She did not tell her husband what had happened and he only later found out from somebody else. She had only told him when he asked about it several days later;
e)her fellow church member had not dared write that the church meeting which was raided had been at her home;
f)in June 2008 the neighbourhood committee confronted her with allegations of church involvement. She denied the allegations and, as she turned to leave, a member of the committee knocked her off her feet and against a wall. She suffered a head injury and continued to suffer intermittent pain on one side of her head and also some memory loss;
g)she had delayed applying for a visa because her elder son had been writing exams and needed support, she had been trying to sell her assets in China to pay for her younger son’s school fees in Australia and she had been trying to arrange for her elder son’s admission into a private university;
h)she had been afraid about what would happen to her family if she came to Australia first so she let her younger son and husband come before her;
i)when she was leaving for Australia the police at the airport scrutinized her bags with unusual attention;
j)from mid-2008 the authorities had frequently questioned her about the church and her employer became aware of the authorities’ interest in her. She had gone into hiding; and
k)she was concerned that the Chinese authorities would learn about her protection visa application and presume that she had criticised the Chinese government and its family planning policy.
The second applicant gave evidence that he arrived home at about 6pm on the day of the police raid and had learnt about the raid from his wife several days later. After a break in the Tribunal hearing, he then said that he had returned home in the evening. The first applicant also said that the second applicant had been nervous about giving evidence and she had told him about the incident when he asked about it several days later.
Second Tribunal
Prior to the hearing before the second Tribunal, the first applicant produced the following documents:
a)a summons addressed to her and dated 20 September 2010 requiring her to attend a police station on 19 November 2010 for interrogation;
b)a detention warrant dated 16 September 2010 and a release notice dated 30 September 2010 relating to the second applicant’s brother;
c)a statement from the second applicant’s brother dated 10 October 2010 stating that in September 2010 he had been arrested, beaten and detained for fifteen days for hosting a church gathering, together with two photographs allegedly showing his injuries; and
d)four letters and two statutory declarations of support from members of the applicants' church in Scone and a statement from one of her fellow church members in China.
The applicants attended a hearing before the second Tribunal which was held over two days. On the first hearing day on 4 November 2010 the first applicant claimed:
a)in September 2010 six policemen raided a gathering at her brother-in-law’s house. Her brother-in-law was beaten by the police. After the police found a copy of the gospel, they went to her mother’s house and told her that the first applicant had to return to China within fourteen days;
b)her mother was very scared and went crazy. She died the week before the Tribunal’s hearing;
c)the member of her home church in China who had provided a letter of support had no knowledge of how the Australian government treated religious freedoms and had been afraid to say that their gathering was raided at the first applicant’s home for fear she would have been mistreated by the Australian government and so said that it had been held “at another person’s home”;
d)because she had been unsure of the Australian government’s attitude towards the underground church and had not had a migration agent to help her with her application, she had not previously mentioned that the church service which the police raided was being held at her home; and
e)soon after her arrival in Australia she attended a Christmas church service and then a Catholic church in Scone in January 2009.
On 12 November 2010 the Tribunal received a statement from the first applicant stating that the Tribunal’s interpreter had made a mistake by interpreting her as having said that the letter from her fellow church member had said the gathering on the day of the raid was in the home of “another” church member when in fact she had said that it was at the home of “a” member of the church. The applicants also produced a second letter from the first applicant’s fellow church member dated 6 November 2010 in which he said that he had received a telephone call from the first applicant expressing her concerns over her protection visa application and was writing the letter at her request. He stated that the police raid had occurred at the applicant’s home and that his reference in his first letter to a fellow believer was a reference to the first applicant.
The applicants appeared before the second Tribunal again on 20 July 2011. The first applicant claimed that the police had summonsed her mother to a court hearing and told her to tell the first applicant to attend court within thirty days. She said that the police then sent her a second summons and her mother died a month after receiving it.
On 6 September 2011 and 17 October 2011 the second Tribunal wrote to the applicants inviting them to comment on information which it considered would be the reason, or part of the reason, for affirming the decision under review. In her responses dated 20 September 2011 and 15 November 2011 the first applicant essentially repeated her claims.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons.
For the following reasons the Tribunal did not accept that the first applicant had attended mass on the evening when she claimed her home church had been raided:
a)it was not until her hearing with the first Tribunal that the first applicant mentioned that the church meeting which the police raided in October 2009 was being held in her home. The Tribunal found unconvincing the applicants’ evidence that they had not raised this earlier because they had not known the Australian government’s attitude towards underground church faith. It found that the applicants must have developed an idea of how Australia felt about refugees given that, prior to the interview with the delegate, the first applicant knew all the things which she said changed her mind about Australia’s attitude to underground Christians, and also given that they applied for protection visas - which indicated that they understood that the Australian government protected refugees who required protection on the grounds of religion. In relation to the applicants’ fear that if they had revealed that the gathering was at their home the information would be revealed to the Chinese authorities, the Tribunal found that if the mass had indeed been raided at the applicants’ home then the Chinese authorities would already know that it had been held there and so the possible release to the Chinese authorities of evidence to that effect would not add to what they already knew and there was thus no new danger to the applicants’ relatives in China or to their home;
b)the Tribunal found that the first applicant informed the first Tribunal that the mass was held at her home before being told by the first Tribunal of the confidentiality of her visa application. It found that the first applicant’s version of the sequence of events, that she had mentioned that the mass was held at her home after being reassured about the confidentiality of her application, was incorrect; and
c)the Tribunal found that the applicants’ evidence was not credible and that the first applicant had changed her story to say that the mass had been held at her home to give more emphasis to her claims.
The Tribunal did not accept that the incident in which the first applicant claimed to have suffered a head injury had taken place. Whilst accepting that the first applicant might have been affected by her mother’s death shortly before the second Tribunal’s first hearing session, the Tribunal nevertheless found that the first applicant did not have any difficulties responding to its questions. The Tribunal found that the first applicant was not hindered in providing evidence and had responded to the s.424A notices both orally and in writing on numerous occasions. The Tribunal also noted that the applicants had a representative.
The Tribunal found that there was no mass held on the day claimed and that there had been no police raid. In this regard, the Tribunal noted that the first applicant gave evidence different from that of the second applicant about when the latter returned home on the day of the raid and about when he was told of the raid and by whom. The Tribunal found that if the claimed events had taken place, the applicants would have been able to provide straightforward and credible responses. As they did not, the Tribunal found that their evidence was not credible and could not be considered corroborative. The Tribunal found that the applicants gave false information, were not reliable witnesses and were not credible.
Whilst noting that it had had less opportunity to consider the credibility of the written evidence provided by other witnesses, the Tribunal observed that the evidence from the first applicant’s fellow church member in China had changed in parallel with the applicants’ evidence. The Tribunal found that the first applicant’s fellow church member clearly stated in his first statement that the mass was at the home of a fellow church believer. The Tribunal found it unusual and implausible that the first applicant’s fellow church member would not say that the mass was held at the first applicant’s home given that his statement was about the first applicant and mentioned her by name a number of times. The Tribunal found that the first applicant telephoned her fellow church member before his second statement and spoke to him about her concerns for her protection visa application. The Tribunal was concerned about the first applicant’s fellow church member’s change in his evidence without any real basis and it found that his evidence was unreliable and that he was not a credible witness. Consequently, the Tribunal gave little weight to his evidence.
For the following reasons the Tribunal also gave little weight to the testimony of the first applicant’s brother-in-law, the two photographs of his claimed injuries, the statements from the first applicant’s mother-in-law, her mother-in-law’s friend and another of her fellow church members, the first applicant’s baptism certificate and her dismissal letter:
a)country information indicated that it was conceivable for corrupt officials to be involved in the illegal production and sale of fraudulent identity documents, that corrupt public officials in China were sometimes key members or partners in “snakehead” organizations and that corrupt officials provided both genuine and fraudulent documents in exchange for money. The Tribunal pointed to further country information indicating that documents could be the product of forgery or fraud and that they could be genuine or fraudulent. The Tribunal found that it was realistically impossible to determine whether a document was the product of forgery or document fraud. In this regard, the Tribunal noted that the Department of Foreign Affairs & Trade post in China could not determine the authenticity of official documents such as the summonses without identifying the first applicant to the authorities and possibly exposing her and her family to harm as well as establishing a sur place claim for the applicants. In those circumstances, the Tribunal considered it inappropriate to pursue enquiries with the police in China; and
b)having regard to country information indicating the widespread availability and use of fraudulent documents in China and its adverse findings on the applicants’ credibility, the Tribunal found that the police documents concerning the first applicant and her brother-in-law had been fabricated and accordingly gave them little weight. The Tribunal found that the documents did not provide the applicant with any basis for a well-founded fear in the future. The Tribunal did not accept that the second applicant’s brother had been beaten by police for religious reasons or that the applicants would be treated adversely by reason of their association with him.
The Tribunal found that the first applicant had suffered harm in the past as a result of China’s family planning policy. However, it also found that there was no real chance that she would suffer serious harm in the future as a result of those events. The Tribunal further found that there was no basis for the Chinese authorities to consider that by applying for a protection visa the first applicant had been critical of the Chinese government and its family planning policy, noting that the first applicant agreed that her problems arising out of the family planning policy had been resolved. The Tribunal also found that the Chinese authorities would not perceive the first applicant to have lodged a protection visa application, because such applications were confidential.
The Tribunal did not accept that the first applicant was mistreated at work or by the authorities, given that it had rejected her claims which formed the basis for those allegations.
Having regard to the first applicant’s lack of credibility and its findings about the first applicant’s claimed Christian activities in China, the Tribunal was not satisfied, pursuant to s.91R(3) of the Act, that she had engaged in religious conduct in Australia otherwise than for the purposes of strengthening her refugee claims. In reaching this conclusion, the Tribunal took into account the first applicant’s knowledge of some Catholic traditions and beliefs, which it found she had learnt whilst she had been living in Australia.
The Tribunal did not accept that the first applicant was a member of an underground Catholic Church in China, that she came to the adverse attention of the PRC authorities as claimed or that she had suffered any harm. It did not accept that the second applicant was a Catholic and found that he would not be subject to any serious harm if he returned to China. The Tribunal found that the applicants would not be perceived to be Christians or Catholic such as to attract the adverse attention of the authorities if they returned to China. The Tribunal did not accept the first applicant’s claims regarding her future harm in China, given they were based on claims of past harm which it had rejected.
As it did not accept the first applicant’s claims, the Tribunal found that she did not have to use bribery to leave China.
Proceedings in this Court
In the amended application the applicants alleged:
1.The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observer.
Particulars
The Tribunal stated (at RD 401, [300]) that it did not accept certain claims made by the Applicants in relation to injuries leading to memory loss. The Tribunal stated “The Tribunal does not accept that this incident took place because [sentence unfinished]”. The unfinished sentence could lead a reasonable observer to conclude that the Tribunal had decided to reject the evidence without having formulated a reason for doing so.
2.The Tribunal failed to give effect to the orders and findings of the Federal Court in SZNYF v MIAC [2012] FCA 839 which remitted the Applicants’ case to the Tribunal to be decided according to law.
Particulars
The Federal Court found that the previously constituted Tribunal had failed to consider whether the Applicant had been the subject of a valid summons in relation to her claimed activities. The reconstituted Tribunal similarly failed to determine or explain why it considered the summons in question not to be genuine.
3.The Tribunal made findings of fact without considering a reasonably likely alternative hypothesis.
Particulars
The Tribunal made a finding that the Chinese authorities would not perceive the Applicants to have lodged protection visa applications because such applications are made confidentially (RD 409 [340]). The Tribunal failed to consider that the Chinese authorities would be aware of the significance of the types of bridging visas issued to the Applicants over a considerable period of time and could have drawn a conclusion on that basis that the Applicants had lodged protection visas.
Apprehended bias
In para.300 of its reasons, the Tribunal relevantly said:
… the Tribunal has considered evidence given at the first Tribunal’s hearing that she suffered memory loss from a head injury. In this regard, at that hearing the applicant had stated that in June 2008 the neighbourhood committee asked her to report to them. The applicant did so, and they again confronted her with allegations of church involvement. The applicant denied this to the committee, and turned to go away, but a member of the committee knocked her off her feet, and against a wall. She suffered a head injury. She was treated with some Chinese medication. She claimed to continue to suffer intermittent pain on one side of the head, and some consequent memory loss. The Tribunal does not accept that this incident took place because
The paragraph finishes at that point, incomplete.
In the particulars of this allegation the applicants said that the existence of the unfinished sentence could lead a reasonable observer to conclude that the Tribunal had decided to reject the first applicant’s evidence without having formulated a reason for doing so.
At the hearing of this application the applicants also submitted that the reasoning expressed in para.300 of the Tribunal’s reasons was based on its statement in the following paragraph that it accepted that the first applicant’s mother had died shortly before the second Tribunal’s first hearing session and that this had affected her. They further submitted that by failing to give reasons the Tribunal had denied them procedural fairness.
As to the last point, there is no general rule at common law that an administrative decision-maker must give reasons for a decision, although in certain circumstances such a requirement might be implied: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [42]ff. Given that the Act provides for judicial review of Tribunal decisions, it may well be that the common law would require the Tribunal to give reasons for its decisions were it not for s.430 of the Act which makes such provision. It may therefore be that the applicants allege that the obligation to give reasons arose out of s.430(1) of the Act which provides:
430 Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
However, a failure to comply with s.430 does not amount to jurisdictional error which, as noted earlier, is the only basis on which the Court may set the Tribunal’s decision aside. Nor am I persuaded that the failure to complete the paragraph indicates that the Tribunal had no reason for the conclusion it expressed or that the omission reveals a failure to consider the issue in question. A consideration of the Tribunal’s reasons as a whole reveals a thoughtful examination of the applicants’ claims, inconsistent with arbitrary decision-making. Seen in context, I do not conclude that the Tribunal’s failure to complete para.300 of the reasons represents a failure to consider the relevant issue. I accept the Minister’s submission that its failure to express its reasoning was an oversight.
The significance of the applicants’ submission that the Tribunal’s finding in para.300 of its reasons was based on material discussed in para.301 is unclear. However, I am not persuaded that the Tribunal rejected the applicants’ allegations concerning the June 2008 incident because the first applicant’s mother had died shortly before its first hearing session.
As to the allegation of bias, it is difficult to conclude that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the way in which para.300 is expressed, might reasonably apprehend that the Tribunal was not bringing an impartial and unprejudiced mind to the determination of the review. The omission of the conclusion to that paragraph is obvious and just as obviously a mistake. If there had been other aspects of the Tribunal’s decision which suggested the possibility of bias then its failure to complete para.300 might be evidence supportive of such a conclusion. However, the Tribunal’s thorough consideration of the applicants’ claims and the reasonable and logical conclusions which it reached are persuasive evidence that the Tribunal approached the review with an unprejudiced mind and that the omission of the reasons for the Tribunal’s conclusion expressed in para.300 should, in context, be seen as no more than an inadvertent failure to express reasoning which had been decided on. As a result, I conclude that the fair-minded lay observer would not apprehend the possibility of bias in this case.
Orders of the Federal Court
As noted earlier in these reasons, the Federal Court set aside the first decision of the Tribunal. On appeal from this Court, Collier J found that she was not satisfied that the first Tribunal had taken into account the question whether the first applicant had been summonsed to appear before the PSB because of her religious beliefs and, as a consequence, whether she had a well-founded fear of persecution for a Convention reason. Her Honour made this finding in circumstances where the first Tribunal had found that a purported summons from the PSB was not a document upon which it could place reliance with the consequence that it gave it no weight on the question whether the Chinese authorities were pursuing the first applicant. Her Honour found that the first Tribunal erred in giving the summons no weight without having made any conclusive finding that it was flawed or otherwise fraudulent and without having explained how its more general concerns about the first applicant’s credit could lead to a finding that a document bearing an apparently official seal was not genuine.
In their submissions at the hearing of this application the applicants argued that the approach of the second Tribunal had been the same as the approach of the first and that it had failed to deal with the issue which Collier J had identified.
The second Tribunal rejected the applicants’ evidence that there had been a mass at their home which was raided by the police, stating that it found them to have given false information and to be neither reliable nor credible witnesses. It also accorded no weight to evidence they advanced which was purportedly corroborative of those claims and thus the claim to have a well-founded fear of persecution in China by reason of their religious beliefs. Amongst the evidence which was said to be corroborative of the applicants’ claims was the purported summons from the Fuqing City PSB which had been the subject of Collier J’s comments referred to above.
Contrary to the burden of the applicants’ submissions, at para.329 of its reasons the second Tribunal acknowledged her Honour’s judgment and then proceeded to deal with the question of the authenticity of that document and the second summons purportedly issued to the first applicant. It concluded that in circumstances where it had evidence that document fraud and forgery existed in China, and where it was impossible to verify the documents in question through official channels for fear of thereby bringing the applicants to the adverse attention of the Chinese authorities, it concluded that as the applicants had been found to be unreliable witnesses and providers of false information, the summonses had been fabricated. This was a finding which was open on the evidence.
The second Tribunal did not repeat the error which Collier J found affected the decision of the first Tribunal. Consequently, the second ground of the amended application is not made out.
Alternative basis for claim
In the particulars of the third allegation of the amended application the applicants posited that because they had been on particular types of bridging visas for a long time the Chinese authorities would be in a position to conclude that they had lodged applications for protection visas. In support of this allegation the applicants submitted that on 27 August 2012 they had visited the Chinese Consulate-General in association with administrative requirements associated with property concerns they had in China. It was suggested that this visit had brought their particulars to the attention of the Chinese authorities.
However, the applicants did not submit, and it is not apparent, that they ever suggested to the Tribunal that they sought protection because of their bridging visas. Nor was such a claim reasonably apparent from the materials before the Tribunal. For instance, the visit to the Chinese Consulate-General occurred more than eight months after the Tribunal published its second decision on 2 December 2011. The Tribunal did not err by not considering a claim which had not been made, was not tolerably apparent from the materials and appears, at least in part, to depend on an event which had not occurred at the time of its decision.
In any event, the applicants did not direct the Court’s attention to any evidence which identified the class of bridging visas they had held and, in particular, to whether those bridging visas were particularly associated with applications for protection visas. Further, the applicants did not point to any evidence before the Tribunal upon which it could have concluded that the classes of their bridging visas had any relevant significance generally or to the Chinese authorities in particular.
For these reasons, the third allegation in the amended application is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 16 November 2012
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