SZONZ v Minister for Immigration

[2011] FMCA 490

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 490

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether Tribunal failed to provide procedural fairness to the applicants – whether Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) or to make an obvious inquiry about a critical fact which could be easily ascertained.

Migration Act 1958 (Cth), ss.36, 91R, 422B, 424A, 425, 426

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1; [2004] HCA 62
M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212
Minister for Immigration and Citizenship v SZGUR (2011) 85 ALJR 327; [2011] HCA 1
Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11
MZPAO v The Minister for Immigration and Citizenship  (2008) FCA 245
NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2
SZEOP v Minister for Immigration and Citizenship [2007] FCA 807
SZEWL v Minister for Immigration and Citizenship (2009) 174 FCR 498; [2009] FCA 209
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106
SZJKO & Anor v Minister for Immigration & Anor [2008] FMCA 370
SZKDP & Ors v Minister for Immigration and Citizenship & Anor [2008] HCASL 215
SZKDP v Minister for Immigration and Citizenship [2007] FCA 1487
SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486
SZNBX and Another v Minister for Immigration and Citizenship and Another (2009) 112 ALD 475; [2009] FCA 1403
SZNKO v Minister for Immigration and Citizenship and Another (2010) 184 FCR 505; [2010] FCA 297
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171

First Applicant: SZONZ

Second Applicant: SZOOA

Third Applicant: SZOOB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1677 of 2010

Judgment of: Barnes FM

Hearing date: 16 February 2011

Date of Last Submissions: 8 March 2011

Delivered at: Sydney

Delivered on: 29 June 2011

REPRESENTATION

Counsel for the Applicants: Mr T Ower

Counsel for the Respondents: Mr Y Shariff

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1677 of 2010

SZONZ, SZOOA, SZOOB

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal made on 6 July 2010 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.

2. The applicants, who are citizens of the People’s Republic of China, are husband and wife and their daughter.  The first applicant, the applicant husband, arrived in Australia on 20 December 2007.  He and the other applicants applied for protection visas on 13 November 2009.  The husband (referred to for convenience as the applicant) was the primary applicant for a protection visa.  He claimed that he was a Christian in China and a member of an underground church.  His wife and daughter, who came to Australia on 1 October 2009, also claimed to be practising Christians. 

3. The applicant claimed that he had been arrested, threatened, intimidated and otherwise persecuted by Chinese government officials due to his religious beliefs and practices. 

4. The applicant husband claimed that from 1998 he preached the Gospel together with his father (a devout Christian involved in underground missionary work), that in March 1999 a Christian gathering at his home in Hubei Province was disrupted by the authorities and that they were threatened with punishment if they held further meetings.  He claimed that they continued meeting but constantly changed the meeting place, but that in July 1999 another meeting was disrupted by the authorities, his father was fined and they were warned that they would be arrested and imprisoned if “there were anyone who dared to preach again”. 

5. The applicant also claimed that a meeting held at his home in January 2000 was raided, that an attempt was made to arrest the applicant, but that he and his wife had escaped as it was dark outside and that the authorities left after intimidating and threatening his father and his wife. 

6. The applicant claimed that his family then moved from Hubei to a farm in Fujian Province and subsisted by growing and selling vegetables.  From the end of 2003 he commenced attending a “family church”.  According to the applicant, a meeting he attended in June 2006 was disrupted by the village committee security team.  While the organiser took responsibility and the attendees (including the applicant) were able to escape, they were warned that the government would punish them if they held further illegal meetings. 

7. The applicant claimed to fear he would be arrested and detained for reason of his religious beliefs and activities if he returned to China. 

8. The applicant’s son and the applicant (as his guardian) were granted student visas in November 2007.  His wife and daughter were granted visitor visas in September 2009.

9. The protection visa application was refused by a delegate of the first respondent on 4 March 2010.  The applicants sought review by application lodged with the Tribunal on 8 April 2010. 

10. On 28 April 2010 the Tribunal invited each of the applicants to attend a Tribunal hearing. On the same date it wrote to the applicants pursuant to s.424A of the Migration Act 1958 (Cth) (the Act) inviting them to comment on or respond to certain information relating to the dates on which visas were granted to the husband and wife, their respective dates of arrival in Australia and the fact that they did not apply for protection visas until 13 November 2009.

11. The applicants responded to the s.424A letter by letter from their adviser dated 12 May 2010. The applicants attended a hearing on 31 May 2010 and provided written statements in support their application. The only evidence before the court in relation to the conduct of the Tribunal hearing is the Tribunal account of the hearing in its reasons for decision. Counsel for the applicants confirmed that the applicants did not rely on an affidavit affirmed by the primary applicant’s son on 11 February 2011.

12. On 2 June 2010 the Tribunal again wrote to the applicants, apparently pursuant to s.424A of the Act, about various aspects of the evidence given by each of them as discussed further below.

13. In a response of 16 June 2010 the applicant husband explained that he had not been given the full record of the Tribunal hearing (and that one of the two compact discs (CDs) provided was a CD for a different hearing for a different applicant), and consequently “may not be able to respon[d] to all the questions” in the Tribunal’s letter.  He went on to address the issues raised by the Tribunal. 

14. The Tribunal provided the applicants with further copies of the CDs of the Tribunal hearing by letter dated 17 June 2010 in which it advised that it would not make a decision before 1 July 2010 and would consider any further information received before a decision was made. 

15. On 18 June 2010 the applicants’ adviser advised the Tribunal that the CDs sent on 17 June 2010 were “bent” and requested new copies.  Further copies of the CDs recording the hearing were made and provided to the applicants’ representative on 21 June 2010. 

16. On 1 July 2010 the applicants’ adviser provided a further response to the s.424A letter in which, among other things, the applicant took issue with the accuracy of interpreting at the Tribunal hearing, as discussed further below.

17. On 6 July 2010 the Tribunal made its decision. 

The Tribunal Decision

1. In its reasons for decision the Tribunal set out in detail the claims made by the applicants in connection with the protection visa applications and to the Department as well as the information they provided to the Tribunal in writing and orally.  

2. The Tribunal accepted that the applicants were nationals of China, but otherwise found that “the entirety of their evidence concerning the events in China ha[d] been fabricated for the purpose of the protection visa application”. 

3. The Tribunal first addressed the applicants’ claim in the response to the second s.424A letter that the interpreter made a number of mistakes in the course of the Tribunal hearing which made it impossible to understand and answer all the questions correctly. It recorded that the “applicants [had] made no indication in the course of the hearing that any deficiencies with interpretation had affected their understanding or ability to give evidence” and found that while they had identified the times on the recording at which they claimed mistakes were made, they had given “no indication [of] what the mistakes were, what the correct information was and how these errors affected their understanding or ability to answer questions”.  In these circumstances, the Tribunal did not accept that “the level of interpreting at the hearing was so poor as to have affected the applicants’ opportunity to give evidence”.  

4. The Tribunal also addressed the applicants’ claim that they feared that their protection visa application had been “made known to the authorities in China because they had been given a wrong recording [CD] of their hearing”.  The Tribunal noted that “the recording of the applicants’ hearing ha[d] not been released to a third party” and found that there was no chance that their application or the circumstances of their application or their identity had been or would be disclosed to the Chinese authorities. 

5. The Tribunal “found the applicants to be witnesses who completely lacked credibility”.  It found that they were “evasive in their answers”, that they “appear[ed] to have memorised the statements”, but that they had “difficulty providing details with respect to other matters not contained in the written material”.  It also found that there were inconsistencies between their oral evidence.  It reiterated that while the applicants had referred to errors in interpreting, they “had given no specific examples – other than the reference to employment” of the claimed mistakes by the interpreter or the correct information. 

6. The Tribunal went on to address particular concerns about the evidence of the applicants.  In this context the Tribunal first had regard to the fact that there were inconsistencies in the evidence about the applicants’ employment in China as follows:

   ·    The applicant husband stated in his oral evidence to the Tribunal that both he and his wife worked as farmers in Hubei and Fujian.  In his protection visa application he also stated that he worked as a farmer between 2000 and December 2008.  He made no reference to any other employment.  When the Tribunal indicated to the applicant husband that his wife provided with her visitor visa application evidence that she was a partner in a motor business, the applicant husband initially stated that his wife worked in that business.  He then said that it was a relative’s business and his wife did not work there and that it was arranged by an agent.  He then said that she worked there since 2007 until she came to Australia.  In his subsequent submission to the Tribunal, the applicant stated that he misunderstood the question, however this does not explain three different answers he had offered. 

   ·    The applicants’ daughter, while being very evasive in her evidence about her parents’ employment, stated that both of her parents worked in a company and that her mother worked in a sales department while her father worked as an installer of devices and that her mother had that job for at least five years.  This is contrary to the applicants’ claims that when they moved to Fujian, they had a vagrant life and were allowed to live in an old pumping room growing vegetables.  The applicants subsequently claimed in their submissions to the Tribunal that they helped in the business but were never employed there and that the daughter may have been confused because they brought pamphlets home.  The Tribunal does not accept these explanations.  The Tribunal does not accept that the daughter would confuse her parents’ employment only because they brought some materials home, particularly as she not only referred to the company, but also to her parents specific roles in that company. 

   ·    When this evidence was put to the applicant wife in the course of the hearing, she said that the information about her employment in the visitor visa application was prepared by an agent, that her daughter was wrong and that she was a farmer on a daily basis.  The Tribunal does not accept that the applicant daughter would be more familiar with the content of an application prepared by an agent than with her parents’ daily activities and that her reference to her parents working in a company was a reference to employment mentioned in the visitor visa application. 

   ·    Further, the applicant wife subsequently admitted to working in a sales department of a company, claiming that it was casual employment.  The applicant husband denied that he or his wife had ever worked in such a company and he could not explain why his daughter would believe otherwise.  The wife’s evidence also appears contrary to the husband’s subsequent written submission to the Tribunal that his wife did not work in such company and that she only worked as a farmer. 

7. The Tribunal also had regard to the husband’s delay in applying for protection, the different explanations he provided orally and in writing for such delay, the fact he “made no mention of being unaware about protection visas” (one of his later oral explanations) in his written submission and that “in his oral evidence he [had] offered the explanation contained in his letter of 12 May 2010 only after some lengthy questioning by the Tribunal”. 

8. The Tribunal addressed the applicants’ claim to have been “believers since the late 1990s, and to have participated frequently in gatherings at which they offered prayers and sang hymns”, but found that “they appeared to have limited knowledge of such prayers and hymns”.  While the Tribunal accepted that they were able to recite the Lord’s Prayer and that the applicant husband also recited another prayer, it found that applicants “appeared to have no knowledge of other prayers or hymns”.  It acknowledged their claim that “no specific prayers [we]re prescribed and that one pray[ed] from the heart”, but also noted that they claimed to have “frequently attended meetings at which prayers were said”.  The Tribunal found that in those circumstances “it may be expected that the applicants would be able to have greater knowledge of prayers than displayed at the hearing”.

9. The Tribunal found that the applicant husband had been “evasive in many of his answers” to it.  For example, it found that “he could not explain why his father became a believer in 1997”, “could not recall when his wife became a believer” and “had difficulty explaining why neighbours reported the gathering after a year” of weekly or fortnightly gatherings.  It found that its concerns in these respects had not been explained to its satisfaction. 

10. The Tribunal found that the applicant husband had given inconsistent and evasive evidence about other matters, such as the time of day when the authorities came in March 1999 to break up a gathering and the number of people present when the authorities came in July 1999.  The Tribunal considered, but did not find satisfactory, the explanations for these inconsistencies.  Insofar as the applicant had ultimately offered reasonable explanations, these were said to be contrary to his earlier explanations.  The Tribunal was of the view that “the applicant’s evasiveness [at the hearing] with respect to the times was a deliberate attempt to avoid any discrepancy with his written evidence”. 

11. The Tribunal found the applicant husband’s “evidence about his dealings with the [Chinese] authorities to be highly problematic”, inconsistent and unconvincing.  It found that he was not able to explain to the satisfaction of the Tribunal why the authorities did not arrest them in July 1999 but merely issued a fine and a warning. 

12. The Tribunal also had regard to the fact that while the “applicant husband consistently claimed that he would be persecuted as a member of the unregistered church and that the authorities arrest[ed] and mistreat[ed] members of the unregistered church”, his evidence also “indicat[ed] that despite his coming to the attention of the authorities on several occasions, no action [had been] taken against him”, other than warnings.  The Tribunal detailed the applicant’s evidence in that respect.  It found that his “ability…to avoid arrests or any harm other than repeated warnings by the authorities”, was “contrary to the very basis of his claims that members of the unregistered church [we]re persecuted and that he would be persecuted for his religious activities”. 

13. In addition, the “Tribunal found the applicant’s description of the [claimed] January 2000 incident to be highly problematic” in several respects.  It recorded that the applicant claimed that his father had admitted to being an organiser and had been fined, but at the same time claimed that the authorities allowed him (that is, the applicant) “to take the blame and to be arrested instead of his father”.  The Tribunal found that this “appear[ed] to be contrary to the applicant’s initial claim that the authorities came to arrest the whole family” and “also inconsistent with the fact that neither the applicant’s father, nor his wife, were subsequently arrested”, despite the applicant’s “claims to have taken his father’s place and later [to have] escaped”.  The Tribunal found that it appeared “nonsensical and highly implausible…that the authorities would come to arrest the entire family, then agree to arrest only the applicant but not the father and others on medical grounds and then, after the applicant escaped, merely scold the father and the wife and give them a warning and do nothing further”. 

14. The Tribunal also found that the applicant’s description of his escape in January 2000 was “implausible”.  In particular, it found it “highly implausible that the applicant would be able to walk out from the front door of his house and avoid five trained officers who would then be unable to catch him or find him due to darkness”, particularly as he claimed his wife took “a mere hour to find him”.  The Tribunal did “not accept that the local village official or the police would not be familiar with the area” or that they “would have allowed the applicant to escape”, would have taken little action to recapture him, and “would then do nothing but scold the remaining family”. 

1. Nor did the Tribunal accept the applicant’s claims as to why other family members were not arrested in January 2000 given his initial claim that the authorities came to arrest the family.  After his inconsistent evidence about whether his wife was present at the meeting was pointed out to him at the Tribunal hearing, the applicant had claimed that the authorities would not have taken any interest in his wife “only because she was a woman”.  The Tribunal did not accept this claim.  It also found that the “applicant’s subsequent claim that his wife was not the organiser and [that] the authorities had no intention of arresting everyone” appeared to be contrary to his “own suggestion that the authorities came to arrest the family, that his wife was intimidated and warned that she would be arrested and that his concern for his wife and daughter was one of the reasons for delaying his protection visa application”. 

2. The Tribunal also had regard to the inconsistency between the applicant husband’s written evidence and his oral evidence (and that of his wife) about whether the wife “escaped” during the January 2000 incident.  It recorded that:

   In their oral evidence, the applicant husband and wife suggest that during the January 2000 incident the applicant wife escaped from the back door.  In the written statement the applicant stated that after he ran away, the authorities scolded his father and wife and intimidated them and they left, suggesting that the wife was present after he escaped and at the time when the authorities left the house. 

3. The Tribunal was of the view that “the applicant husband’s evidence about his dealings with the authorities” was “unconvincing”, given that he claimed “that he was constantly harassed and warned on several occasions”, that he had “admitted to being the organiser [of gatherings] in 2000 and to have escaped from the authorities while in the process of being arrested”, he had also claimed that he was issued with a passport because he had “not killed anybody and was not a criminal”.  The Tribunal found this “contrary to the very basis of his claims that by engaging in the activities of the unregistered church he was engaging in the activities which [we]re persecuted by the government” and “also contrary to his subsequent claim that because he had escaped, his penalty would be severe”.  The Tribunal found that the “fact that the applicants were issued with the passports in Hubei in 2007 suggest[ed] that they were of no interest to the authorities” and also “that their claims of having escaped arrest in 2000 were untruthful”. 

4. The Tribunal also described particular areas of concern about the applicant daughter’s evidence as follows:

   The Tribunal considered the applicant daughter’s evidence to be evasive.  She also appears to have memorised certain aspects of the claims and had difficulty providing evidence with respect to other aspects of the claims.  She was evasive when speaking about her parents’ employment, claimed that she could not recall or was not told by her parents when she started attending gatherings.  She claimed that she started attending gatherings in 2004 or 2005 in Fuqing and that before then her parents once took her to a patriotic gathering.  This appears to be contrary to the claims of the applicant husband who repeatedly referred to his children being present at gatherings in Hubei before the family moved to Fujian in 2000. 

   When the daughter was asked about the authorities attending gatherings, she said that she only recalled one incident in Fuqing in about 2006 but she could not recall the details because her mother took her away quickly.  The applicant husband stated that his children were present on other occasions when the authorities came to the gatherings in Hubei.  The applicant wife also stated that during the 2000 incident when the authorities came to arrest them, she went to another room to comfort her children. 

   The applicant daughter stated that she was familiar with the Lord’s Prayer, that she could not recall any other prayers and always recited that paragraph when she prayed.  When asked if she knew other prayers aside from the Lord’s Prayer, her response was to ask if there was a difference… 

5. Similarly, the Tribunal found that “the applicant wife appeared to have little knowledge of prayers other than the Lord’s Prayer”, notwithstanding that the applicant claimed “his wife and children had…attend[ed] a number of gatherings”.  The Tribunal was of the view that “if the applicant wife and daughter had been attending religious gatherings for a number of years, as is claimed, [they] would show greater familiarity with formal prayers”.

6. It stated that “[t]hese inconsistencies, evasiveness, deficiencies in evidence and the lack of reasonable explanations caus[ed] the Tribunal to find that the applicants ha[d] been untruthful in their evidence”. 

7. The Tribunal was “most concerned about the applicant husband’s delay in seeking protection”.  He travelled to Australia in December 2007, but did not apply for protection until November 2009.  The Tribunal did not accept his explanations “that he was not aware about protection visas and had limited English”, noting that he “travelled to Australia with his son, who had sufficient English and knowledge to attend the course” of study and “to obtain a permission to work”.  Insofar as the “applicant husband claimed that his son was assisted by an uncle”, there was no explanation as to “why the uncle could not equally assist the applicant to make inquiries about seeking protection”.  The Tribunal did not accept that for two years the applicant was unable “to make inquiries about being able to remain in Australia”.  It addressed his claim “that he was concerned for the safety of his wife and child”, but found it “unclear” as to how others in China would find out about any protection visa application, even if he did tell his relatives as he suggested he would.  Nor was it “clear to the Tribunal why the applicant thought his son would be ‘implicated’ by helping him to make inquiries”.  The Tribunal “formed the view that the applicant had been untruthful in his evidence” and “that the two year delay in seeking protection [wa]s indicative of…[an] absence of any fear of persecution” on the part of the applicant husband and “was not caused by any other reason put forward by” him.  It also found that this suggested “that the applicants ha[d] been untruthful in their evidence about the events in China”. 

8. The Tribunal then stated that the “combinations of these concerns caus[ed it] to find that the applicants [we]re not witnesses of credibility” and had “not been truthful in their evidence”.  It concluded that “the entirety of their evidence concerning the events in China ha[d] been fabricated for the purpose of the protection visa application”.  The Tribunal rejected the applicants’ claims that they “became believers in Christianity in China or that they had attended, participated in, organised, or had any other involvement in religious gatherings in China”.  It did not accept that they “had any association with other religious practitioners or Christians, including family members and others”, or that they “engaged in any religious activities including preaching, or that meetings were held in their home”.  Nor did it “accept that the applicants had ever come to any attention of the [Chinese] authorities due to their religious beliefs, that they had been warned, fined, threatened, intimidated or that they were otherwise of any interest to the authorities”.  The Tribunal did “not accept that the authorities had any intention of arresting [them], that they had escaped or that they moved to another province to avoid the authorities”. 

9. The Tribunal rejected “the entirety of the applicants’ claims relating to events in China” and found that they “had no interest in, and no commitment to, Christianity in China” and that there was “no real chance that [they would] be persecuted for their religion if they were to return to China, due to any past events”.

10. The Tribunal addressed the applicants’ oral evidence about attendance at a church in Australia and a written statement from another person confirming such attendance.  The Tribunal accepted that the applicants had attended a church in Australia, but having found that they “had no interest in, no involvement in, and no commitment to Christianity in China, and having formed the view that [they had] fabricated their claims for the purpose of their protection visa application”, found that the applicants had not satisfied it “that they engag[ed] in religious activities in Australia otherwise than for the purpose of strengthening their claims to be refugees”.  The Tribunal disregarded such activities.

11. The Tribunal found that the applicants would not engage in any religious activities if they returned to China and that there was no real chance they would be persecuted due to their religion or for any other Convention reason if they were to return to China now or in the reasonably foreseeable future and that they did not have a well-founded fear of persecution. 

12. Finally, as the Tribunal was not satisfied that any of the applicants was a person to whom Australia had protection obligations it found that they did not satisfy the criterion in s.36(2)(a) of the Act for a protection visa and that it followed they were also unable to satisfy the criterion set out in s.36(2)(b) of the Act (for members of a family unit) and hence could not be granted the visas sought. The Tribunal affirmed the decision of the delegate.

13. The applicants sought review by application filed in this court on 3 August 2010. They filed an amended application on 19 October 2010. In the course of the hearing it emerged that part of the basis for a contention by the applicants that the Tribunal failed to comply with its obligations pursuant to s.424A of the Act (referred to incorrectly as s.424 in the amended application) was not addressed in the grounds in the amended application. The applicants were given leave to file a further amended application containing an additional ground and the parties were given the opportunity to file and serve written submissions addressing the additional ground. The parties took that opportunity and the applicants now rely on the further amended application filed on 21 February 2011.

Procedural fairness

1. The first ground in the further amended application is that the Tribunal failed to provide procedural fairness to the applicants.  The particulars to this ground are as follows:

   In responding to the invitation by the [Tribunal] to provide further information subsequent to the hearing the applicants wrote a letter dated 1 July 2010 indicating, inter alia, that the interpreting at the hearing was deficient and nominating specific CD references as to when these breakdowns in communication occurred.  The [Tribunal] proceeded to make its decision on 6 July 2010 without giving the applicants the opportunity to answer its queries concerning those references.

2. In written submissions counsel for the applicants pointed to the fact that in rejecting the applicants’ claims the Tribunal had made extensive adverse credibility findings based upon inconsistencies in their evidence, most of which were put to the applicants as adverse information in the letter of 2 June 2010.  A substantial part of the information referred to was oral evidence given by the applicants at the Tribunal hearing through a Mandarin interpreter.  The applicants referred to the fact that the written responses of the applicants dated 16 June 2010 and 1 July 2010 (provided through the applicants’ migration agent but under the name of the husband) referred to errors in interpreting the oral evidence which were said to have led the Tribunal to misunderstand the evidence in relation to matters such as where they worked, their knowledge of Christianity and what occurred in the January 2000 incident.   

3. There are a number of references to “interpreting error” in the letter of 16 June 2010.  The numbered paragraphs in the applicant’s response of 16 June 2010 do not accord precisely with the 18 dot points in the Tribunal’s letter of 2 June 2010.  Paragraph two of this response appears to address an aspect of concerns raised by the Tribunal about inconsistencies in the applicants’ evidence about whether the parents (and particularly the wife) worked as farmers or for one or another company.  These answers must be seen in light of the concerns they seek to address.  Thus, the Tribunal had put to the applicants the following:

   ·    [The husband] stated in his oral evidence to the Tribunal that both he and [the wife] worked as farmers in Hubei and Fujian.  In his protection visa application [the husband] also stated that he worked as a farmer between 2000 and December 2008, making no reference to any other employment. 

   ·    [The wife]’s visitor visa application contains information relating to her employment as a selling agent at [named entity], including confirmation of employment and a letter granting leave. 

   ·    When the Tribunal indicated to [the husband] during the hearing that [the wife] provided with her visitor visa application evidence that she was a partner in a motor business, [the husband] initially stated that his wife worked in that business, he then said that it was a relative’s business and his wife did not work there and that it was arranged by an agent.  He then said that she worked there since 2007 until she came to Australia. 

   ·    [The daughter] stated that both of her parents worked in a company and that her mother worked in a sales department while get father worked as an installer of devices and that her mother had that job for at least five years.  When this evidence was put to [the wife] in the course of the hearing, she said that the information about her employment in the visitor visa application was prepared by an agent, that her daughter was wrong and that she was a farmer on a daily basis.  [The wife] subsequently admitted to working in a sales department of a company, claiming that it was casual employment.  [The husband] denied that he or his wife had ever worked in such a company and he could not explain why his daughter would believe otherwise. 

4. In reply, the husband stated, among other things, that he had worked as a farmer from 2000 to 2007, not 2008; that his daughter’s claim that his wife was employed by a named electronics company was “not accurate”, that neither he or his wife had been employed by that company but that they had “help[ed]” them and may have brought pamphlets home so his daughter may have thought they were employed there.  He claimed they “rarely talked to [their] children about [their] jobs”, that “in China sole farmer farming alone [was] not usually regarded as employment, that was why daughter may have misunderstood”.  He also claimed his wife was helping at “the outlet” but was never employed there and that their agent in China had organised the certificate and references. 

5. In paragraph two he stated:

   After my son and I arrived in Australia, and when my wife apply for her Australian visa, the agent in China had suggested my wife to apply from Hubei, the agent asked my wife if there was any suitable company be able to offer her a stable job, my wife thought that her relative who owns …Motorcycles Co might be able to help, besides, we’d invested some money there, so the agent told her to go there do some helping but she wasn’t do any formal work there, and I have explained of this, but the interpreter has mistakenly interpreted as my wife working there. (hearing record between 30:04-30:11).

6. He did not explain exactly what he claimed was in fact said in the part of the hearing record referred to in this response. 

7. Paragraph five of the letter of 16 June 2010 is apparently a response to the Tribunal’s concerns about each applicant’s limited knowledge of prayers and hymns, despite their claims to have been believers in Christianity since the late 1990s and to have participated frequently in gatherings at which prayers were said and hymns were sung.  It was as follows:

   My wife and I are devout Christians, but we could not read the bible thoroughly, or understand it in whole like some other Christians due to our limited education.  On the other hand, the interpreter’s errors also contributed to both of us and the tribunal have misunderstood each other, and what I have said at the hearing also been misinterpreted. 

8. Again, there was no explanation of the asserted errors by the interpreter. 

9. The responses in paragraphs 10 and 11 relate to issues raised by the Tribunal about the incident that was said to have occurred in China in 2000.  In order to understand the context of these responses, it is convenient to set out the dot points in the Tribunal’s letter of 2 June 2010 that related to the 2000 incident.  The Tribunal put the following information to the applicants:

   ·[The husband] claimed that the authorities came to arrest his family in 2000 because they were the organisers.  He claimed that his father had admitted on a previous occasion to being an organiser and he was fined.  He claimed that the authorities allowed him to take the blame and be arrested instead of his father.  He claimed that after his escape, the authorities scolded [his father] and [his wife] and gave them a warning before leaving.

   ·[The husband] claimed that six people came to arrest the family, including two policemen and three security guards and that he was able to escape because it was dark, they were not vigilant and he was more familiar with the area.  He claimed that after he escaped, the authorities scolded [his father] and [his wife] and gave them a warning before leaving.

   ·When asked why [his wife] was not arrested on that occasion, [the husband] stated that women in the country are not significant.  He also claimed that [his wife] was intimidated and warned that she would be arrested and that his concern for his wife and daughter was one of the reasons for delaying his protection visa application. 

   ·In their oral evidence, [the applicant husband and the applicant wife] suggested that during the January 2000 incident [the wife] escaped from the back door.  In the written statement [the husband] stated that after he ran away, the authorities scolded his father and wife and intimidated them and they left. 

10. The relevant part of the applicant’s response of 16 June 2010 relied on in support of ground one in the further amended application is as follows:

    10.  You were clearly misunderstood it that when the incident happened in 2000, due to the interpreting error, it was me stood out in accepting all the responsibilities and agreed to go with them, and I escaped after that, so the authority warned my wife only, but not both of us as you have stated, because I had ran away.

    11.  My wife was just left form (sic) the back door, she no need to escape as she was not the organiser, so she no need to run or escape as the interpreter has interpreted, which caused you to misunderstand it.

11. It is not clear whether the applicant’s reference in paragraph 10 to the Tribunal’s statement that the authority had warned both him and his wife is a misunderstanding of the Tribunal’s reference in its letter to the husband’s evidence that the authority scolded his father and his wife, as it appears the Tribunal used the same family name to refer to the husband and his father.  According to the Tribunal’s account of what occurred in the Tribunal hearing what was put to the applicant related to his evidence about the authorities “scold[ing]” his father and wife.  In any event paragraph 10 does not refer to any specific interpreter error. 

12. There was no clarification as to what the wife was supposed to have said in the part of the hearing said to have been misinterpreted in paragraph 11. 

13. In addition, in his letter of 1 July 2010 the applicant husband stated that:

    My wife and I were farmers, we’ve always farming for living while we were in Fujian, all the applications were prepared by agent in China.  My wife and I had helped there at the …Electronics but never worked there.  Why I have said my wife was working at …Motorcycles from 2007 until they left China for Australia because I have misunderstood what the tribunal have asked was whether my wife was working in Fujian or in Hubei.

1. Again there is no reference to any particular interpreter error in this response. 

2. Apart from this reference to a misunderstanding, the applicant claimed generally in the letter of 1 July 2010 that the interpreter had “made many interpreting errors on both directions” and that “because of the misinterpreting, it was impossible for us to understand the all questions correctly, or answer the questions correctly” and that “[t]he following CD recording tracks were indicated that the interpreter has given wrong interpreting from both directions, which resulted M (sic) misunderstood the questions been asked and correct answered (sic) been interpreted wrongly”.  The letter then listed by time, 23 intervals on the two CDs of the Tribunal hearing in the following format:

   CD 1 Recording track:

   30:04 – 30:11

   30:16 – 30:25

   36:14 – 36: 20

   …

3. There was, however, no other explanation or description of the asserted mistranslations in the applicant’s responses to the Tribunal.  Nor is there any other evidence before the court to substantiate any claim that there were interpreting errors at the Tribunal hearing. 

4. The applicants contended first that in its findings and reasons, when the Tribunal criticised the applicants for only giving one specific example of the interpreter’s mistakes, citing the “reference to employment”, it was likely that the Tribunal ignored what were said to be other “specific examples” given in the letter of 16 June 2010. 

5. It was said to be clear that while the Tribunal was “on notice that the Applicants believed there was a serious problem with the interpreting of the oral evidence” and “had been referred to specific time references of particular concern”, it had chosen to reject these comments “because of a perceived lack of specificity”. 

6. It was submitted that in circumstances where the applicants had referred to specific times during the hearing when interpreting errors were said to have occurred, they “could be taken to have a reasonable expectation that the [Tribunal] would meaningfully address the submission”.  It was submitted that for the Tribunal to assert there were no examples given of the interpreter’s mistakes was “inconsistent with the evidence” and that rather than dismissing their response on the basis that more detail was required, the Tribunal should have taken “further step[s] to clarify the issue”.  Counsel for the applicants submitted that in failing to take any further step to clarify the applicant’s concerns with them the Tribunal had denied the applicants procedural fairness.  It was contended that the Tribunal was under an obligation to give the applicants the opportunity to answer any questions or concerns the Tribunal had about the adequacy of their response and to give them an opportunity to provide further information. 

7. In submissions counsel for the applicants suggested that the procedural fairness issue raised in this ground focussed largely upon the response dated 16 June 2010, notwithstanding that the particulars to this ground refer only to the references in the letter of 1 July 2010 to times at the hearing as recorded on the CDs provided by the Tribunal. 

8. Issue was taken with the manner in which the Tribunal proceeded to make its decision in the face of the references to interpreter error in the applicant’s response to the Tribunal’s letter of 2 June 2010.  Counsel for the applicants submitted that in each of the paragraphs set out above the applicant had claimed to the Tribunal that it had misunderstood his evidence (and also that of his wife) due to an interpreting mistake.  However, it was said that in its findings and reasons, when the Tribunal addressed evidence about the January 2000 incident there was no reference at all to any such mistake or alleged mistake in interpretation.  In this context it was submitted that the Tribunal’s failure to give the applicants the opportunity to answer its queries about their responses was a denial of procedural fairness. 

   
   

   It appears that it is intended to be asserted that the references to the particular parts of the CDs of the Tribunal hearing in the letter of 1 July 2010 are to be seen in light of the earlier comments by the applicant.  

9. The applicants submitted that in circumstances where there were such complaints about misinterpretation, there was something that was so clearly obvious that it should have been pursued by the Tribunal in an attempt to complete its review process, particularly given that the Tribunal had both the responses from the applicants and a copy of the hearing tapes.  This was said to be so notwithstanding that, as French CJ and Kiefel J stated in Minister for Immigration and Citizenship v SZGUR (2011) 85 ALJR 327; [2011] HCA 1 at [9], “a decision-maker is not…required to expose his or her thought processes or provisional views for comment before making the decision”.  It was pointed out that their Honours had stated at [9] that:

   Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power.  The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material.   

10. Contrary to the first respondent’s contention that there had been an opportunity afforded to the applicants to respond to the Tribunal’s concerns, but that they had given responses that were not detailed enough, the applicants submitted that despite these responses the opportunity should have been given to them to give further details because it could reasonably be assumed and expected by them that the Tribunal would also have a copy of the hearing tapes and would go specifically to the references in the letter of 1 July 2010.

11. As the first respondent submitted, the written submissions for the applicants did not clearly articulate the legal basis for the contention in ground one that the Tribunal had denied the applicants procedural fairness in a manner constituting jurisdictional error. It was not clear whether the applicants were asserting that the Tribunal was obliged to put further concerns to the applicants under s.424A of the Act.

12. Insofar as this was intended to be asserted, it is not made out. 

    
    

    As counsel for the applicants acknowledged, a Tribunal member is not required to expose his or her thought processes or provisional views for comment before making a decision (SZGUR at [9]). Moreover such matters do not constitute “information” within s.424A of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]). As Finn and Stone JJ were said to have “correctly observed” in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 (SZBYR at [18]) the word “information”:

    …does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

13. In other words s.424A does not impose any obligations on the Tribunal to clarify inadequacies in the applicants’ responses to a s.424A letter, notwithstanding that, it was acknowledged in SZGUR that the Tribunal may choose to invite Tribunal supplementary submissions. 

    
    

    As French CJ and Kiefel J stated at [9]:

    That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal.  Indeed, it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond (footnotes omitted). 

14. In this case however the Tribunal did not issue any such invitation. 

15. In relation to the question of whether an obligation to give the applicants an opportunity to clarify their claims about misinterpretation arose in any other way, s.422B of the Act was not addressed and the applicants’ submissions did not identify a relevant contravention of any provision of Division 4 of Part 7 of the Act. No authorities were cited in the applicants’ written submissions in support of the proposition that the Tribunal denied the applicants procedural fairness in a manner constituting jurisdictional error.

16. The first respondent’s written submissions referred to authorities in relation to incompetent interpretation and circumstances in which a failure to afford an “effective opportunity” to a non-English speaking applicant to give evidence may give rise to a contravention of s.425(1) of the Act (Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [21]; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 and M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212 at [34], and also see Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230).

17. However, as the first respondent submitted, the applicants have not met the onus of establishing that they were denied an effective opportunity to give evidence pursuant to s.425(1) of the Act.

18. Indeed, counsel for the applicants did not seek to assert that the interpretation at the Tribunal hearing was so inadequate that the applicants were not afforded an effective opportunity to give evidence pursuant to s.425(1) of the Act. It was clarified that the applicants did not rely on or contend that there had been a contravention of s.425(1) of the Act in the manner considered in Perera at [21].

19. Further, ground one was does not assert a failure by the Tribunal to make an obvious inquiry about a critical fact which could have been easily ascertained.  That is the basis for ground two which is discussed below. 

20. It has not been established that either common law procedural fairness or s.425 of the Act obliged the Tribunal to alert the applicants to the problems it perceived with their submissions concerning interpreting errors (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 and Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60).

21. I note first that while the Tribunal pointed out that no complaint was made by the applicants about the level or quality of the interpretation during the Tribunal hearing, this would not be conclusive as to whether any jurisdictional error could arise out of inadequate or inaccurate interpretation.  More pertinently, the applicants did not identify in specific terms to the Tribunal (or in these proceedings) the precise nature of the claimed interpreting mistakes, what the correct interpretation was and how exactly the alleged mistakes affected the evidence given by them. 

22. Insofar as the applicants’ contention is that the Tribunal erred in that it did not in its written reasons recognise or address each of the specific examples of alleged mistaken interpretation identified in the applicants’ letters of 16 June 2010 and 1 July 2010, the Tribunal clearly recognised and addressed that such claims had been made by the applicants and acknowledged that they had “identified the time on the recording when they claim the mistakes were made”. Further, in submissions the applicants acknowledged that the matters in paragraphs two and five of the letter of 16 June 2010 were addressed. The fact that it did not set out in full the applicants’ responses to its s.424A letter does not establish a failure to provide procedural fairness in the manner contended in ground one.

23. The Tribunal’s view that the applicants failed to give “specific examples” of claimed errors in interpreting (other than the reference to the wife’s employment) does not demonstrate a lack of procedural fairness on the basis contended for in ground one.  The Tribunal addressed the claims about the mistranslation in relation to the wife’s employment but found that the applicant’s claimed misunderstanding did not explain the three different answers he had offered.  It was open to the Tribunal not to regard the applicants’ answers in paragraphs 5, 10 and 11 of the letter of 16 June 2010 as “specific” examples of the interpreter’s alleged mistakes or the correct information.  Paragraph 5 contended generally that there were misunderstandings and that what the applicant said (about his practice of Christianity) had been misinterpreted.  This does not identify a specific mistranslation.  Paragraph 10 of the applicant’s response simply alleged that the Tribunal “misunderstood" whether both he and his wife were warned or just his wife.  It does not refer to a mistranslation.  Paragraph 11 did not clearly explain the asserted mistranslation. 

24. Insofar as the applicants’ complaint is that the Tribunal did not address the specific example of interpreting errors in relation to evidence at the hearing about the events of 2000, this is without substance.  It appears that what the applicants claimed in paragraph 10 of their letter of 16 June 2010 was that the applicant accepted responsibility and agreed to go with the authorities and then escaped, so that the authorities warned his wife only, but not both of them.  However nothing was said in that response about the position of the applicant’s father.  What was of concern to the Tribunal was that while the applicant had claimed that his father had admitted on a previous occasion to be an organiser and had been fined, in the incident in 2000 the authorities had allowed the applicant to take the blame and be arrested instead of his father. 

25. Even if there was some misunderstanding about what was being put in the Tribunal’s letter (notwithstanding that this issue was clarified in the subsequent dot points) nothing turned on this.  It is apparent from the Tribunal’s recitation of the applicant’s evidence at the hearing in its reasons for decision that the issue of potential relevance to the applicant’s credibility was why the authorities did not also arrest the applicant’s father if they believed his father to be the organiser (even if the applicant had agreed to go with them).  The applicant did not suggest that there was any kind of error in relation to that issue.  In the Tribunal’s findings and reasons this was the issue of relevant concern in relation to this aspect of the applicant’s evidence and his claims that the authorities allowed him to take the blame and be arrested instead of his father, not the issue identified in the first response from the applicant. 

26. Further, whether or not there was any interpretational difficulty in relation to whether the applicant’s wife was described as running away or escaping or just as leaving the house from the back door during the incident in 2000 (as suggested in paragraph 11 of the letter of 10 June 2010), this was not a matter of relevance to the Tribunal findings and reasons.  Rather, its concern was the inconsistency between whether the applicant wife left the home (however she did so) or whether she stayed behind and was present after the applicant had escaped at the time when the authorities left the house.  In any event the Tribunal’s reasoning does not of itself establish a failure to provide procedural fairness. 

27. The list of references to parts of the CDs of the hearing in the applicant’s letter of 1 July 2011 did not explain what the asserted mistranslations were.  The basis for ground one is an assertion that the Tribunal erred in making its decision “without giving the applicants the opportunity to answer its queries concerning” the specific CD references.  It has not been established that there was a lack of procedural fairness because the applicants were not given a further opportunity to elaborate on their responses or to comment on the Tribunal’s conclusion that insufficient material had been provided to it in respect of the alleged interpretation errors for it to accept this as an explanation for inconsistencies in their evidence.  

28. It is well-established that it is not for the Tribunal to make good an applicant’s case.  Rather, it is for the applicant to put forward material in support of his or her case.  In Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 it was contended that the Tribunal should have pressed an applicant to call further evidence as to psychological problems or to expand his arguments relating to the ramifications of such problems for any aspect of his case (at [20]). However Keane CJ found that s.425 of the Act did not require the Tribunal to act in this manner. Relevantly, his Honour addressed the provisions in Division 4 of Part 7 of the Migration Act which were said (at [21]) “to inform one’s understanding of the nature of the hearing contemplated by s 425 of the Act”. In that context, after referring to ss.425, 414, 420, 422B and 424, his Honour found (at [22]) that:

    None of these provisions of the Act affords support for the view that the Tribunal is duty-bound to press an applicant to call further evidence on an issue or to seek an adjournment of the hearing to enable him to do so, or to seek out such evidence itself. 

29. The same may be said in relation to a written response to a s.424A letter which does not satisfy the Tribunal about the matters raised by the applicants. As Keane CJ pointed out in SZNVW at [23], “proceedings before the Tribunal are not adversarial in nature”.  Gummow and Hayne JJ stated in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11 at [71] in relation to a review by the Tribunal:

    The person who has sought the review seeks a particular administrative decision – in this case the grant of a protection visa – and puts to the Tribunal whatever material or submission that person considers will assist that claim.

30. Relevantly, Keane CJ also found no support in earlier High Court decisions for the view that a Tribunal hearing did not conform to the requirements of s.425 of the Act “merely because the applicant might, if better advised, have chosen to present a more compelling case”  (SZNVW at [30] per Keane CJ.) Indeed, relevant to the present case, as His Honour stated at [35]:

    …there is nothing in the text of s 425, or in the statutory context in which it appears, or in the authoritative judicial exegesis of s 425, to suggest that it was the intention of the legislature that the Tribunal should take upon itself the role of ensuring that all possibly arguable lines of argument which might be available to an applicant in any given case are pursued to the applicant’s best advantage.

31. The same may be said about the Tribunal’s obligations in relation to the adequacy of an applicant’s response to any concerns raised by it in writing.  The Tribunal is not required to put to an applicant its reasoning in that respect.  Moreover, as Keane CJ pointed out at [36] the Tribunal is:

    …not obliged to conduct an inquiry to discover whether the [visa applicant’s] case might be better put or supported by other evidence.  The applicant had the opportunity to adduce such evidence as to his psychological state and its impact on his “demeanour, memory and consistency”, as he wished.

32. Similarly in this case it was for the applicants to put such evidence before the Tribunal as they wished.  I note in that respect that references to particular parts of the CDs of the Tribunal hearing would not enable the Tribunal to determine whether there was in fact any mistranslation to or from English without evidence as to the “correct” translation.  The Tribunal was not obliged to point this out to the applicants (or to their migration agent) or to draw to their attention the limited specificity in their complaints about what they said and how that was translated at their hearing. 

1. Further, insofar as the applicants may be seen as relying on the decision of the High Court in ApplicantNAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1; [2004] HCA 62, in that case the majority of the High Court held that the requirements of s.425(1) were not satisfied in circumstances where a Tribunal member had stated that she would send questions to the applicant and await his response, but in fact no such questions were sent and the application was refused. It was in those circumstances that McHugh, Gummow, Callinan and Heydon JJ stated at [27]:

   One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments:  s.425(1).  The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness.  That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.

2. In contrast, in this case there is no evidence that the Tribunal had suggested in any way that its review process had not been concluded or that further steps were to be taken. 

3. I also note that (putting aside the issue of a failure to complete the review discussed in relation to ground two), the High Court stated in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [24] that it is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. That is so even apart from s.422B of the Act, as Bennett J pointed out in SZNBX and Another v Minister for Immigration and Citizenship and Another (2009) 112 ALD 475; [2009] FCA 1403 at [19] (and see SZGUR at [22] – [23]).

4. No jurisdictional error on the part of the Tribunal is established in relation to its consideration of these issues. As the first respondent submitted, neither common law procedural fairness nor s.425 of the Act obliged the Tribunal to alert the applicants to the problems it perceived with their submissions about interpreting errors. It was not required to give them “a running commentary upon what it thinks about the evidence” it was given (SZBEL at [48]).

5. Ground one is not made out. 

“Failure to Inquire”

1. The second ground in the further amended application is that the facts particularised in relation to ground one “demonstrate a failure by the [Tribunal] to complete its review of the applicants’ claims by not making an obvious inquiry about a critical fact, which could have been easily ascertained”. 

2. It was contended that the Tribunal should have sought further clarification of the applicants’ submissions about interpreting errors on the basis that this would have been an obvious inquiry about a critical fact which could have been easily ascertained as discussed in SZIAI at [25].

3. Counsel for the applicants submitted that the critical fact was the accuracy of the interpreting of the oral evidence of the hearing for which time specific references to the compact disk recording of the hearing had been provided by the applicants to the Tribunal.  It was contended that the obvious inquiry was a request to the applicants for further details of the nature referred to in the Tribunal reasons for decision (such as what the mistakes were, what the correct information was and how the errors affected the applicants’ understanding or ability to answer questions) and that such an inquiry could easily have been directed to the applicants by way of a further letter (presumably through their agent on whose letterhead their responses were provided). 

4. The applicants submitted that given the critical importance of the accuracy of oral testimony in the circumstances of this matter the Tribunal should have taken this extra step to complete its review. 

5. As noted above, there is no evidence before the court to support and no suggestion of any failure to comply with s.425 of the Migration Act or other jurisdictional error arising by virtue of interpretation inadequacies or errors of the sort considered in Perera.  Rather, this ground involves a contention that the Tribunal should have asked the applicants for further information, beyond that provided in their two responses to the letter of 2 June 2010.  However, as set out above, the Tribunal is not obliged to make an applicant’s case or to conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (SZNVW at [36] per Keane CJ and at [49] per Emmett J). It is well-established that it is the applicant’s responsibility to make his or her case and to provide sufficient information to the Tribunal to enable it to come to the requisite state of satisfaction (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14).

6. In SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated at [25]:

   Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction…It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error (footnotes omitted). 

7. However their Honours found it unnecessary to explore such questions of principle in the case before them in circumstances where there was nothing on the record to indicate that any further inquiry by the Tribunal directed to the matter in issue (in that case the authenticity of certificates about the applicant’s involvement in a particular association) could have “yielded a useful result” and because the response by the applicant’s solicitors to the Tribunal indicated the futility of further inquiry (at [26] – [27]). 

8. Similarly, in SZGUR, while French CJ and Kiefel J referred (at [23]) to the remarks in SZIAI in relation to a duty to inquire, having acknowledged that circumstances may arise in which a Tribunal had a duty to make particular inquiries (at [22]), the court also found it unnecessary to further explore such questions of principle.

9. The same may be said in this case, having regard to the fact that there is nothing in the material before the court to indicate that any further inquiry by the Tribunal of the sort contended for by the applicants could have yielded a useful result (SZIAI at [26]). There is nothing before the court to indicate what information might have been elicited if the Tribunal undertook a further inquiry of the applicants in the manner contended for or of how any such information would be critical to the validity of its decision. In particular, there is no evidence before the court (apart from the evidence of the applicants’ assertions to the Tribunal) that there was in fact any relevant misinterpretation in the Tribunal hearing.

10. More generally, the applicants had the opportunity to respond to the concerns raised by the Tribunal about inconsistencies in their evidence and to establish any explanations based on mistaken interpretation.  There is no general duty to inquire on the Tribunal.  It is for the applicants to put to the Tribunal whatever evidence or arguments they wish to advance in support of their claims (Abebe at [187] per Gummow and Hayne JJ). As pointed out by Bennett J in SZNBX at [29]:

    The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his “nursemaid” (Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142; (2006) 154 FCR 365 at [199]-[200] per Allsop and Graham JJ – appeal allowed by the High Court but not on this point).

11. It has not been established that there was a failure by the Tribunal to review or a jurisdictional error arising in some other way as contended. In particular, it has not been established (insofar as this was intended to be contended) that the failure by the Tribunal to seek a further response from the applicants or further elaboration of their response to the s.424A letter was in all the circumstances so unreasonable as to support a finding that the Tribunal decision was affected by jurisdictional error (SZIAI at [26]). Nor, having regard to what was said in relation to ground one, did any issue of procedural fairness arise, given that the applicants were given an opportunity to comment upon the issues raised in the Tribunal’s letter of 2 June 2010 (whether or not, strictly speaking, all the matters raised in that letter were matters that had to be put to the applicants pursuant to s.424A of the Act).

12. Ground two is not made out. 

Section 424A(1)(b) of the Migration Act

1. The third ground in the further amended application is that the Tribunal failed to comply with its obligations pursuant to s.424A(1)(b) of the Migration Act. The particulars to this ground are as follows:

   In its letter to the applicants dated 2 June 2010 the [Tribunal] cited portions of evidence as relevant information in an undifferentiated and confusing way without a proper explanation as to how or why each item of information would be relevant to credibility findings or motivation to attend Christian Church in Australia.

2. Section 424A(1) of the Act is also relevant to ground four in the further amended application. It is as follows:

   Subject to subsections (2A) and (3), the Tribunal must:

   (a)Give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;  and

   (b)Ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review;  and

   (c)Invite the applicant to comment on or respond to it.

3. It was submitted for the applicants that the Tribunal’s s.424A letter of 2 June 2010 failed to comply with s.424A(1)(b) in that it made no attempt to collate, differentiate or present in an ordered way the information contained in 18 bullet point paragraphs and that no indication was given as to whether one particular piece of information was more important or relevant. Rather, all the information was said to be relevant to the credibility of all of the applicants and also relevant to whether the Tribunal may not be satisfied that they engaged in religious activities in Australia otherwise than for the purpose of strengthening their claims to be refugees and thus may disregard such activities in accordance with s.91R(3) of the Act. In particular it was submitted that no explanation was given by the Tribunal as to why each piece of information would lead to a rejection of the applicants’ claims. It was pointed out that the Tribunal’s obligation under s.424A went further than to require it to refer to the consequences of the information being relied upon and extended to oblige it to ensure, as far as is reasonably practicable, that the applicants understood why the information was relevant. It was submitted that the Tribunal’s s.424A letter fell short of this statutory requirement.

4. The applicants conceded that the requirements of s.424A were not to be treated as though they were divorced one from the other and also that, as noted by Flick J in SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486, the greater the degree of clarity in the particulars of any information provided, the less may be the exposition needed to convey the relevance of that information to the review. It was nonetheless submitted that there must be some attempt to explain relevance and that the Tribunal failed to do so and hence that the unstructured nature of the letter of 2 June 2010 amounted to a failure to comply with a mandatory statutory requirement leading to jurisdictional error (SZEOP v Minister for Immigration and Citizenship [2007] FCA 807).

5. In support of this contention it was suggested that notwithstanding that the applicants made an attempt to comment upon the matters raised by the Tribunal, these submissions had little prospect of satisfying the Tribunal because of the confusing way in which the information was presented in the letter of 2 June 2010 and the lack of a clear explanation of relevance. 

6. The only matter of substance raised by the applicants in relation to this ground in pre-hearing written submissions and oral submissions was the issue of the applicant wife’s work history contained in the first four dot points of the letter. In oral submissions it was contended that the information in the applicant wife’s visitor visa application fell within s.424A(1) of the Act and that s.424A(1)(b) had not been complied with in relation to that material.

7. In oral submissions counsel for the applicants conceded that, insofar as what was being put to the applicants in the letter of 2 June 2010 consisted of inconsistencies in the evidence of an applicant, as French CJ and Kiefel J observed in SZGUR at [9]:

   …the existence of “inconsistencies” and “contradictions” in an applicant’s testimony and written submissions to the Tribunal is not “information” of the kind to which s.424A is directed.

8. Thus, insofar as the Tribunal’s letter of 2 June 2010 related to inconsistencies in the evidence of a particular applicant, those matters did not have to be put to the applicants pursuant to s.424A. Any invitation to an applicant to comment on perceived inconsistencies and contradictions in his or her evidence or case is not an invitation under s.424A of the Act (SZGUR at [9]) and there is no obligation to comply with s.424A in such an invitation.

9. Counsel for the applicants nonetheless contended that an issue of compliance with s.424A(1)(b) of the Act remained in relation to the manner the Tribunal put to the applicants the wife’s work history and information contained in her visitor visa application. Relevantly, that part of the letter of 2 June 2010 was addressed to the visa applicants as follows:

   I am writing about the applications of review made by you in relation to decisions to refuse to grant Protection (Class XA) visas. 

   In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that the Tribunal has not made up its mind about the information. 

   The particulars of the information are:

   ·    [The husband] stated in his oral evidence to the Tribunal that both he and [the wife] worked as farmers in Hubei and Fujian.  In his protection visa application [the husband] also stated that he worked as a farmer between 2000 and December 2008, making no reference to any other employment. 

   ·    [The wife’s] visitor visa application contains information relating to her employment as a selling agent at [named entity], including confirmation of employment and a letter granting leave. 

   ·    When the Tribunal indicated to [the husband] during the hearing that [the wife] provided with her visitor visa application evidence that she was a partner in a motor business, [the husband] initially stated that his wife worked in that business, he then said that it was a relative’s business and his wife did not work there and that it was arranged by an agent.  He then said that she worked there since 2007 until she came to Australia. 

   ·    [The daughter] stated that both of her parents worked in a company and that her mother worked in a sales department while her father worked as an installer of devices and that her mother had that job for at least five years.  When this evidence was put to [the wife] in the course of the hearing, she said that the information about her employment in the visitor visa application was prepared by an agent, that her daughter was wrong and that she was a farmer on a daily basis.  [The wife] subsequently admitted to working in a sales department of a company, claiming that it was casual employment.  [The husband] denied that he or his wife had ever worked in such a company and he could not explain why his daughter would believe otherwise. 

10. After setting out a number of other issues about the applicant’s evidence the Tribunal continued:

    This information is relevant because it may cause the Tribunal to find that you are not persons of credibility and to question the claims contained in your protection visa application. 

    It is also relevant because the Tribunal may not be satisfied that you engaged in religious activities in Australia otherwise than for the purpose of strengthening your claims to be refugees and may disregard such activities in accordance with s.91R(3).  The Tribunal may find that you will not engage in religious activities in the future if you return to China. 

    If the Tribunal does not accept your claims, the Tribunal may find that [the husband] is not a person to whom Australia has protection obligations.  The Tribunal may find that [the husband] does not meet s.36(2)(a) of the Act in that he is not a person to whom Australia has protection obligations under the Refugees Convention. The Tribunal may then find that [the wife] and [the daughter] do not meet cl.36(2)(b) (sic) of the Act in that they are not, respectively, a spouse and dependant of a person to whom Australia has protection obligations. The Tribunal may also find that they do not meet s.36(2)(a) of the Act.

    You are invited to give comments on or respond to the above information in writing. 

    Your comments or response should be received at the Tribunal by 16 June 2010.  If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator. 

11. This ground does not involve any contention that the Tribunal failed to give “clear particulars” of any information as required by s.424(1)(a). That issue emerged in the hearing and is the subject of ground four discussed below.

12. It was submitted that the Tribunal did not ensure as far as was reasonably practicable that the applicants understood why this information was relevant to the review as required by s.424A(1)(b) of the Act.

13. The applicants’ written submissions in this respect relied largely on the response from the applicants to this information and the use made by the Tribunal of the information and the applicants’ responses in its reasons for decision.  It was submitted that the applicants’ response of 16 June 2010 appeared to comment upon this information in paragraphs one and two in which the applicant husband reiterated his claims about his and his wife’s employment and took issue with his daughter’s evidence in that respect.  In relation to the information in the wife’s visitor visa application about her employment as a selling agent at a named company, he responded that the “certificate and other references were organised by the agent there in China”.

14. It was also submitted that the Tribunal had overlooked the applicant’s comment that “she wasn’t do any formal work there.  And I have clearly explained of this, but the interpreter has mistakenly interpreted as my wife was working there (hearing record between 30:04 – 30:11)” in finding that the applicant husband’s response did not explain the different answers he had offered in relation to this issue.  This response and reasoning were said to support the contention that in “bundling up” the information concerning this issue without clearly explaining its relevance, the Tribunal had failed to focus the applicants on a key issue later found against the husband (that he had given three different answers). This was said to highlight the Tribunal’s failure to comply with s.424A(1)(b) of the Act.

1. The first applicant (the applicant husband) was the primary applicant for a protection visa.  The second and third applicants did not make any separate or independent refugee claims in their applications to the Department which were completed on the forms applicable for members of a family unit who did not have their own claims to be a refugee.  Only the primary applicant completed a Form C containing the basis for his asserted claims to be a refugee.  The Tribunal considered the application on the basis that each family member had claimed persecution on the basis of alleged religious persecution as well as on the basis that the wife and daughter sought visas as members of the family unit of the husband. 

2. The first respondent submitted that the applicant’s had not identified the basis of any separate claims made by the second and third applicants, what they were and when they were made (cf SZJKO & Anor v Minister for Immigration & Anor [2008] FMCA 370) and that in these circumstances there was no reference point by which to determine what information formed the reason or part of the reason for affirming the decision under review for the purposes of s.424A of the Act.

3. However the Tribunal accepted that the wife and daughter were claiming protection on the basis of their religious beliefs and activities as Christians in China as well as on the basis of membership of the applicant husband’s family unit.  The question of whether their individual claims were “clearly articulated” is not determinative of whether the Tribunal met its obligations under s.424A of the Act. Their evidence in that respect, particularly at the Tribunal hearing, was set out in detail.

4. There is, however, some lack of clarity in the applicants’ apparent assertion that the information the Tribunal was obliged to particularise to each applicant the entirety of the testimony of each of the other applicants as seemed to be suggested in the particulars to ground four.  The general statement in the applicants’ post-hearing written submissions that “In so far as the oral evidence of each family member was relied upon to reject the claim of the other, it was information that was required to be put pursuant to s.424A” does not identify which part of their respective testimonies was said to be of this nature (other than that contained in the second and eighth bullet points of the Tribunal’s letter). In submissions in reply the applicants clarified that it was not asserted that the Tribunal was obliged to put particulars of all of the testimony of each applicant to the others as information within s.424A of the Act. Insofar as ground four appears on its face to involve such a contention no jurisdictional error is argued or established on that basis.

5. It was submitted that the matters referred to in the Tribunal letter concerned evidentiary material and that while it may have been inconsistent evidentiary material that did not derogate from the fact that it was “information” within the meaning of s.424A. In other words it appears that issue is taken only with the manner in which information consisting of part of the oral evidence of each applicant was put to the other applicants and whether that amounted to giving “clear particulars” of the evidence from each applicant referred to in the Tribunal’s letter of 2 June 2010.  Reliance was placed on the remarks by Rares J in SZEWL.  After citing passages from the decision of the Full Court of the Federal Court in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 and the High Court in SZBYR at [18] his Honour continued at [47]:

   In my opinion, “information” within the meaning of s 424A must relate to what a witness said to the tribunal, or what is contained in documentation before the tribunal. Such a construction is reinforced by consideration of s 424. That section entitles the tribunal to get any information that it considers relevant. And, s 424(2) authorises the tribunal to invite a person “to give additional information”. In other words when a person, not being the applicant, gives the tribunal information, that information is not “given by the applicant for review” within the meaning of ss 424(2) or 424A(3)(b).

6. On this basis, the applicants contended in reply that the matters put by the Tribunal in “most” of the bullet paragraphs related to such evidence and accordingly constituted information.  This remains imprecise.  The applicants are represented.  It is not for the first respondent or for the court to speculate as to the precise extent to which the material in the letter of 2 June 2010 is said to be “information” within s.424A(1) of the Act.

7. In any event, the applicants’ contention is not that the Tribunal failed to put particular information from an applicant’s oral testimony to the other applicants, but rather that it failed to give “clear particulars” of such information. In submissions the applicants acknowledged that each piece of information may have been accurately described, but submitted that the matters were put by the Tribunal in an undifferentiated and confused fashion which was far from clear and that if the Tribunal did not breach s.424A(1)(a) due to this lack of clarity, it nonetheless breached s.424A(1)(b). This submission about s.424A(1)(b) does not establish jurisdictional error on the basis contended for in ground four of the further amended application.

8. Insofar as it was reiterated in post-hearing submissions that the Tribunal’s assertion that reliance on such information may cause the Tribunal to reject the claims was too general to satisfy s.424A(1)(b) or that s.424A(1)(b) was otherwise breached, ground four does not assert a breach of s.424A(1)(b).

9. Moreover, insofar as any obligation arose upon the Tribunal to put to the applicants “clear particulars” of evidence given by the other applicants, then the Tribunal discharged that obligation (see SZKDP).  It is clear that such evidence was clearly put to all the applicants in the Tribunal’s letter of 2 June 2010 sent to their migration agent as authorised recipient for all the applicants.  The factual circumstances considered by Buchanan J in SZKDP  and the observations made by his Honour at [36] are apposite:

   After the oral hearing before the RRT on 20 November 2006 it wrote to the primary applicant on 21 November 2006 as I earlier indicated.  It wrote to him both in his own right and as an “authorised recipient” for his wife (s441G of the Act). It drew their attention to those parts of the evidence of the primary applicant and his wife, given the day before, which ultimately played a part in the RRT decision to affirm the earlier decision of the delegate. I am satisfied that if any obligation under s424A was engaged in relation to the evidence which they gave (which is, at least, open to doubt) it was satisfied in this case in relation to both the primary applicant and his wife.

   The same may be said in this case. 

10. The Tribunal’s letter must be seen in its proper context.  A review of the letter discloses that its purpose was to identify:

    a)inconsistencies in the evidence given by each applicant;

    b)inconsistencies between the evidence given by different applicants; and

    c)credibility issues relating to the applicants’ purported faith and their alleged involvement in Christian activities.

11. Insofar as the Tribunal’s letter related to internal inconsistencies within each applicant’s evidence, these matters do not amount to “information” for the purposes of s.424A of the Act (MZPAO v The Minister for Immigration and Citizenship (2008) FCA 245 at [29] to [33]). It cannot be inferred that internal inconsistencies in one applicant’s evidence were the reason or part of the reason for finding that Australia did not have protection obligations to either or both of the other applicants. The Tribunal’s adverse credibility findings against each applicant were not based on internal inconsistencies in the evidence of any other applicant.

12. In any event, insofar as evidence from one applicant which is inconsistent with that of another applicant constitutes information for the purposes of s.424A of the Act in relation to the second applicant, clear particulars of such evidence was put to each of the applicants in the Tribunal’s letter (see SZKDP v Minister for Immigration and Citizenship [2007] FCA 1487). There is no suggestion in the applicant’s submissions that the Tribunal’s summary of any of the evidence in question was inaccurate or was not sufficiently particularised. Each item of evidence was identified with “clarity” and contrasted with conflicting evidence (see SZMTJ at [52]). The fact that the Tribunal contrasted conflicting evidence on each issue it described does not establish that the information was “tangled together” in a manner which meant that clear particulars were not given. 

13. The first four bullet points in the Tribunal’s letter (set out above) clearly dealt with the question of the first and second applicants’ employment and disclosed inconsistencies in the evidence given by the first applicant (first and third bullet points); in the evidence given by the second applicant (second and fourth bullet points);  between the evidence given by the first and second applicants (all four bullet points);  and between the evidence given by the second and third applicants (fourth bullet point). 

14. The subsequent dot points either do not relate to information within s.424A or, if they do, particulars were put to each applicant as required by s.424A(1)(a). Thus, the fifth bullet point related to the applicant husband’s oral and written evidence about the reason for delay in making his protection visa application. This identified the fact of the delayed application for a protection visa and inconsistencies in the reasons he gave for such delay relevant to his credibility. It does not amount to information for the purposes of s.424A of the Act from the perspective of the other applicants. In any event, clear particulars were provided.

15. The sixth bullet point was addressed to each applicant, as is evident from the opening words “you claim to be believers…”. However, it is apparent that the purpose of this bullet point was to identify to each applicant concerns about his or her credibility, as each was said to appear to have limited knowledge of prayers and hymns based on his or her oral evidence. This is not information for the purposes of s.424A of the Act (and see s.424A(3)(b)). If it is, clear particulars were provided.

16. The seventh bullet point related only to the first applicant’s lack of recall about when the wife became a believer and the adequacy of his explanations for why his father became a believer and why neighbours reported the gathering after a year. These matters were relevant to the credibility of his claims. They do not amount to information for the purposes of s.424A of the Act in relation to his application or those of his wife or child.

17. The eighth bullet point, which was specifically referred to in the applicant’s post-hearing submissions, did no more than identify inconsistencies in the first applicant’s evidence, including as between his oral evidence and that which he gave in writing.  That dot point was as follows:

    When referring to the March 1999 incident, [the husband] stated in his written evidence that at around 9.30 pm the village commander and a security team came to the meeting venue while in his oral evidence to the Tribunal he stated that this occurred at 8 pm.  Similarly, when referring to the July 1999 incident, [the husband] stated in his written evidence that about 10 people were present at the gathering when six people came at around 7 or 8 pm.  In his oral evidence, [the husband] initially stated that eight, nine or ten people were present and then said there were nine people not including the children and that the authorities came at around 8 or 9 pm.

18. Again, such inconsistency does not amount to information for the purposes of s.424A of the Act (SZBYR at [17]). Insofar as it was contended that this constituted relevant “information” in relation to the first applicant’s claims, the information fell within the exception in s.424A(3)(ba) of the Act as discussed above. Insofar as it was contended that the matters identified in the eighth bullet point amounted to “information” in relation to the claims advanced by the second and third applicants, the applicants have not established that these matters could be the basis for any “rejection, denial of undermining” of those applicants’ claims (see SZBYR) such as to constitute information for the purposes of s.424A of the Act. The Tribunal’s reasons do not lead to any contrary inference, but in any event the Tribunal clearly set out particulars of the varying accounts provided by the husband.

19. The ninth and tenth bullet points identified further concerns held by the Tribunal as to the credibility of the first applicant’s claims that he was a person of interest to the relevant authorities and his allegations that he was a person the authorities wished to arrest. Again, these matters are not such as to invoke any obligations under s.424A of the Act to any of the other applicants.

20. The eleventh, twelfth and thirteenth bullet points dealt with inconsistencies in the first applicant’s evidence about the alleged incident in 2000, to which s.424A does not apply, but, in any event, contain clear particulars.

21. The fourteenth bullet point dealt with an inconsistency in the first applicant’s evidence about the January 2000 incident that is not within s.424A of the Act. It also described an inconsistency between the oral evidence of the husband (and that of his wife) that during the January 2000 incident she escaped from the back door and the husband’s written evidence that after he ran away the authorities scolded his father and wife and intimidated them and was as follows:

    ·    In their oral evidence, [the husband] and [the wife] suggested that during the January 2000 incident [the wife] escaped from the back door.  In the written statement [the husband] stated that after he ran away, the authorities scolded his father and wife and intimidated them and they left. 

22. Insofar as this relates to inconsistencies in the husband’s evidence it is not within s.424A of the Act. Indeed, such information cannot be said to constitute a “rejection, denial or undermining” of any of the applicant’s claims to be a person to whom Australia owed protection obligations.  As the High Court stated in SZBYR at [17]:

    …the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

23. In any event, clear particulars of that information were set out in the letter of 2 June 2010. 

24. The fifteenth bullet point dealt with an inconsistency in the first applicant’s claims (about harassment and being issued with a passport). This does not give rise to any obligations under s.424A of the Act in relation to any of the applicants.

25. The sixteenth and seventeenth bullet points can be described together.  They relate to and set out an inconsistency between the oral evidence of the daughter and that of her father about when she started attending religious gatherings and an inconsistency between the oral evidence of the daughter and her parents relevant to when she attended gatherings.  In these bullet points, the letter set out the daughters oral evidence that she started attending gatherings in Fuqing in 2004 or 2005 apart from one earlier occasion and her father’s repeated evidence that his children were present at gatherings in Hubei (before the move to Fujian in 2000).  It also set out the daughter’s evidence that she recalled one incident (in 2006) when the authorities attended a gathering; her father’s evidence that the children were present on other such occasions prior to the move to Fujian in 2000; and her mother’s evidence that during the 2000 incident when the authorities came to arrest them she went to another room to comfort the children as follows:

    ·    [The daughter] stated in her oral evidence to the Tribunal that she started attending gatherings in 2004 or 2005 in Fuqing and that before then her parents once took her to a patriotic gathering.  [The husband] repeatedly referred in his evidence to his children being present at gatherings in Hubei before the family moved to Fujian in 2000. 

    ·    When [the daughter] was asked by the Tribunal about the authorities attending gatherings, she said that she only recalled one incident in Fuqing in about 2006 but she could not recall the details because her mother took her away quickly.  [The husband] stated that his children were present on other occasions when the authorities came to the gatherings in Hubei.  [The wife] also stated that during the 2000 incident when the authorities came to arrest them, she went to another room to comfort her children. 

26. While such information cannot be said on its face to constitute a “rejection, denial or undermining” of an applicant’s claims to protection (as discussed in relation to the fourteenth bullet point) in any event, clear particulars of this material were put to the applicants in the Tribunal’s letter.  The inconsistency between the evidence of each applicant is apparent.  The evidence was described clearly.  Its relevance to the applicants’ credibility was sufficiently explained thereafter in light of the clear exposition of the inconsistencies. 

27. The eighteenth bullet point identified separate concerns about the credibility of each the second and third applicants’ limited knowledge of Christianity, notwithstanding that the first applicant claimed his wife and children had been attending a number of gatherings. It has not been established that the evidence about one applicant’s religious knowledge amounts to information for the purposes of s.424A of the Act that had to be put to the other applicants, but in any event, insofar as the husband’s evidence is relevant to the wife’s and daughter’s protection claims based on religion (or vice-versa), sufficiently clear particulars were put in the Tribunal’s letter.

28. Thus, insofar as the matters contained in the Tribunal’s letter consisting of oral evidence from each applicant amounted to information that had to be put to the other applicant’s for the purposes of s.424A of the Act, those matters were put to each of the applicants (see SZKDP).  The applicants’ complaint that the Tribunal’s letter did not provide clear particulars is without substance.  The letter clearly identified relevant matters of concern which all related to questions of credibility and/or identified the Tribunal’s concerns about each applicant’s alleged faith in Christianity and sufficiently clearly articulated the relevance of such matters.

1. Ground four is not made out.  I note that counsel for the applicant contended in written submissions in reply that the matters outlined in the “bullet point” paragraphs of the Tribunal’s letter of 2 June 2010 involved selective pieces of evidence given by each applicant, that part of the problem of identifying the relevance of each and every piece of information was the fact that the Tribunal itself made no attempt to do so and that the Tribunal’s error was in not clearly explaining the “relevance” of those parts of the evidence. However such submissions do not relate to s.424A(1)(a) of the Act. The claim in relation to s.424A(1)(b) was considered above. There was no suggestion that other parts of the oral evidence of each applicant (beyond those parts referred to in the Tribunal’s letter of 2 June 2010) constituted “information” to which the s.424A(1)(a) obligations applied.

2. As no jurisdictional error has been established on any of the bases contended for by the applicants the application must be dismissed. 

I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  29 June 2011