SZQBN v Minister for Immigration
[2011] FMCA 408
•2 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQBN v MINISTER FOR IMMIGRATION | [2011] FMCA 408 |
| MIGRATION – Review of decision of a delegate of the Minister – Minister conceded jurisdictional error – whether the Court should exercise its discretion to grant the relief sought – visitor visa and protection visa – bad faith and “unclean hands” – application to have the matter re-open – relief not granted – application dismissed. |
| Migration Act 1958 (Cth), ss.116, 120, 476 Evidence Act 1995 (Cth), s.56 |
| Bing! Software Pty Ltd v Bing Technologies Pty Ltd (No.2) [2008] FCA 1761 Lee v Professional Services Review Committee No 292 (No.2) [2010] FCA 1490 BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited; In the Matter of BMG Poseidon Corp Pty Ltd [2009] FCA 389 Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 Judicial Review of Administrative Action, Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action – Fourth Edition, Lawbook Co., Thomson Reuters, Sydney, 2009 |
| Applicant: | SZQBN |
| Respondent: | Minister for Immigration & Citizenship |
| File Number: | SYG 184 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 April 2011 |
| Date of Last Submission: | 25 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr P D Reynolds |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr G T Johnson SC |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application made by the respondent on 20 May 2011 to re-open the case is dismissed.
The application made on 4 February 2011 is dismissed.
Instead of the amount specified in Schedule 1, Part 2 of the Federal Magistrates Court Rules 2001 (Cth), the applicant is to pay the respondent’s costs as agreed or taxed under Order 62 of the Federal Court Rules 1979 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYG 184 of 2011
| SZQBN |
Applicant
And
| Minister for Immigration & Citizenship |
Respondent
REASONS FOR JUDGMENT
The issue in this case is whether the Court should exercise its discretion to grant the relief sought by the applicant in circumstances where the respondent Minister concedes jurisdictional error in the decision made by his delegate which affected the applicant.
The material before the Court is:
1)A bundle of relevant documents filed by the Minister on 3 March 2011 (Court Book – “CB”).
2)A Supplementary Court Book filed by the Minister on 6 April 2011 (Supplementary Court Book – “SCB”).
3)The affidavit of Xidan Tong, registered migration agent, of 4 February 2011 (no objection).
4)The affidavit of Xidan Tong, registered migration agent, of 17 March 2011 with an annexure (no objection).
5)The applicant’s affidavit of 8 April 2011 (said also to have been made on 18 March 2011) (no objection).
6)The affidavit of Howard Douglas Murdoch, solicitor, of 8 April 2011 with annexures (no objection).
7)The affidavit of Diana Xidan Tong, registered migration agent, of 8 April 2011 (no objection).
8)The affidavit of Yan Cheng, NAATI accredited interpreter, of 12 April 2011, with annexures (the “marked up” version of the interview transcript) (no objection).
9)The affidavit of Joseph Benedict Johnson, solicitor, of 4 April 2011, with annexures (no objection).
10)The affidavit of Bernadette Marie Rayment, solicitor, of 6 April 2011, with annexures (paragraphs [4] and [5] and annexure “B” not read, otherwise no objection).
11)Applicant’s Exhibit 1: CD of an interview at Sydney Airport involving the applicant [lengthy parts of which were played during the hearing before the Court].
Background
The relevant background is:
1)The applicant is a national of the People’s Republic of China (“China”) who first arrived in Australia on 28 October 2010.
2)Previously in China he had applied for and was granted a tourist visa for travel to Australia (13 August 2010) (CB 1 to CB 22). This visa allowed for multiple entries, up until 19 August 2011, for a period of three months at each entry (SCB 14).
3)The applicant’s mother and sister reside in Australia. His father, his wife (from whom he had separated) and his daughter reside in China.
4)The applicant left Australia for Fiji on 24 January 2011, returning on 27 January 2011.
5)On return the applicant was referred to immigration officials at 12.25pm.
He was interviewed at the airport by immigration officials. At either 8.20pm or 8.25pm on the same day, the applicant was issued with a “Notice of Invention to Cancel” his visitor visa (CB 30 and CB 40).
It appears the applicant was given the opportunity to speak with his solicitor, or migration agent, between 8.35pm and 8.45pm. At 8.49pm the applicant was again interviewed by the Minister’s delegate, who made the decision which is the subject of the application to the Court. That is, to cancel the applicant’s visa pursuant to s.116(1)(g) of the Migration Act 1958 (Cth) (“the Act”). The applicant was refused immigration clearance.
At 11.45pm the applicant indicated that he sought protection in Australia (CB 32). He continued to be questioned by immigration officials in this regard. The applicant was held at the airport for nearly twelve hours in total prior to indicating that he sought protection in Australia.
Before the Court
At the hearing of this matter before the Court the applicant was represented by Mr P D Reynolds of counsel. The respondent was represented by Mr G T Johnson SC.
The application to this Court was made on 4 February 2011 pursuant to s.476 of the Act. It was amended on 17 March 2011. The grounds assert jurisdictional error in the delegate’s decision to cancel the applicant’s visitor visa.
The Minister concedes jurisdictional error on one issue. That is, that there was certain information before the delegate, the particulars of which were not given to the applicant pursuant to s.120 of the Act. This included information that an allegation had been received by the Minister’s department that the applicant had intended to apply for protection in Australia using fraudulent documents (SCB 34).
Given that jurisdictional error is conceded, and there being no reason not to agree with the Minister’s position, it is not necessary to further consider the other grounds of the application which also assert jurisdictional error.
Application to Re-open the Case
At the conclusion of the hearing of this matter on 13 April 2011, I reserved judgment. Subsequently, on 20 May 2011, the Minister applied to have the matter re-opened. The Minister sought to have an affidavit of a solicitor employed by the Minister’s solicitors (Mr R White), sworn on 13 May 2011, read into evidence.
Following a relatively short hearing on this matter, leave was granted to both parties to file and serve written submissions on this question. Both parties have put such submissions before the Court.
In essence, the Minister says that what he now seeks to put before the Court is material that was not available at the time of the hearing before the Court, namely the applicant’s application to the Refugee Review Tribunal (“RRT”), made on 27 April 2011 (after the hearing of the substantive matter before the Court), to review the decision made by a delegate of the Minister on 11 April 2011 (before the hearing before the Court) to refuse the applicant a protection visa.
The application to the RRT was said to be made under cover of a letter to the RRT from the applicant’s solicitors, and to have been accompanied by a copy of the decision record of the delegate who refused the protection visa application.
This decision predates the hearing before the Court, however the Minister says that he is not seeking to introduce that decision record into evidence per se. Rather, that before the RRT the applicant sought to press protection visa claims which are inconsistent with what he told the delegate at the airport, and it is this inconsistency which the Minister now seeks to rely on.
The Minister also submits that the bundle of documents put to the Tribunal at the time of application to it highlights the inconsistency, as also revealed in the applicant’s evidence before the Court, between what he told the delegate at the airport and what was subsequently revealed in the protection visa application.
Further, the Minister asserts that there is no prejudice to the applicant if the Court were to now accept this evidence because the evidence in Mr White’s affidavit is only sought to be relied upon as a post-Court hearing statement to the RRT made by the applicant and not the contents of the delegate’s decision annexed to the affidavit.
The Minister also makes reference to a number of authorities as to the nature of further evidence that may be received after judgment has been reserved (Bing! Software Pty Ltd v Bing Technologies Pty Ltd (No.2) [2008] FCA 1761 at [12] – [15], Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, Lee v Professional Services Review Committee No 292 (No 2) [2010] FCA 1490 at [2], BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited; In the Matter of BMG Poseidon Corp Pty Ltd [2009] FCA 389 at [10], McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 89 at [45] – [56], Telstra Corporation Ltd v Australian Competition & Consumer Commission [2008] FCA 1436).
That reference, in essence, was based on the characterisation of this evidence as “fresh evidence” in the sense that what is being relied upon is what the applicant sent and pressed upon the RRT after the hearing before the Court, and that the interests of justice are better served if this Court was to therefore base its decision on the most current account of what the applicant has said to immigration authorities, including the RRT.
It must be said that I have some considerable difficulty with the Minister’s characterisation of this as “fresh evidence”. In spite of the emphasis on the applicant pressing material on the RRT after the Court’s hearing, in reality, whatever way the Minister seeks to present it now, what is being sought is to put before the Court the delegate’s decision record. A decision record in existence at the time of the Court’s hearing.
It appears to be the case that the applicant’s solicitors, or in the circumstances more correctly, as Mr Reynolds noted, his migration agents, put three things to the RRT after the Court hearing: an RRT application form, a covering letter, and the protection visa decision record (and notification of that decision) relating to the refusal of the applicant’s protection visa application.
It is true that, taking judicial notice of the current version of the RRT application form (available at there does not appear to have been any need for the applicant’s migration agents to have submitted that record. This form does not provide for any election as to submitting a copy of the delegate’s decision record. This form merely requires that the decision to be reviewed be identified.
This point illustrates that, in the material submitted by the applicant’s agents to the RRT, if the protection visa delegate’s decision record is put to one side, the agent’s covering letter and the RRT application form itself provide nothing more of substance to the Minister now than the mere fact that the applicant has applied to the RRT.
The addition of the protection visa delegate’s record to these therefore can only be properly seen as an attempt now by the Minister to put this record, and what is contained in it, to the Court. This includes the delegate’s view of the applicant’s claims.
The distinction sought to be drawn between the protection visa delegate’s record as it stood prior to the Court’s hearing, and the applicant’s subsequent pressing before the RRT of matters arising from that delegate’s decision is, with respect and in the circumstances, a mechanism to get before the Court that record and what the applicant pressed, or omitted to press, before that delegate.
The argument in the substantive case is whether, in light of the concession that the airport delegate’s decision was infected with jurisdictional error, relief should nevertheless not be granted to the applicant on the basis that the applicant acted in bad faith, and can therefore be said to have come to this Court with unclean hands.
The first question, as posed in the applicant’s written submissions of 25 May 2011 (“whether the Applicant was a bona fide visitor on 27 January 2011…” at [8]), reveals a misunderstanding of the exercise of the Court’s power.
Whether the applicant was a bona fide visitor or not is a question for the Minister, not the Court. The posing of this question, however, does explain the applicant’s focus in submission in the substantive matter as to the Court avoiding conducting merits review.
In any event, the relevant question addressing the issue outlined above is whether the applicant lied to, or deceived, or misled departmental officials. If the answer is yes, then this forms the basis of what the Minister otherwise asserts is bad faith on the part of the applicant.
For immediate purposes, however, once this is properly understood, it also provides the basis for refusing the Minister’s application to re-open this case.
In this light, I agree with Mr Reynolds that, any claims the applicant sought to agitate before the protection visa delegate, and indeed then sought to press before the RRT, are not relevant. Nor is it helpful in showing the applicant’s state of mind or explaining his behaviour at the airport on 27 January 2011, and in the relevant period leading up to that time.
In this sense I agree with Mr Reynolds that Mr White’s evidence should not be admitted in these proceedings (s.56(2) of the Evidence Act 1995 (Cth)). What is relevant has already been put before this Court. That is, the evidence of what occurred at the airport, evidence of previous relevant events, and the evidence of parties (for example the applicant and Ms Tong) as to what occurred at the airport and the reasons and explanations for those events.
The above is sufficient, in my view, to dispose of the Minister’s application to re-open the case. However, I find that I also agree with Mr Reynolds that, in the circumstances, the Minister’s application is in conflict with the principle of finality on the basis that, as I understood the Minister’s submissions in support, if the contents of the delegate’s decision record are not said to be relied upon, then the fact that the applicant is now pressing refugee claims to the RRT does not really add anything of substance to the substantive issue under consideration. In these circumstances, what has already been heard should be the final word.
Finally, I also agree with Mr Reynolds that there is prejudice to the applicant that, when added to the elements above, makes his opposition to the Minister’s application compelling.
The focus of the hearing before the Court was plainly on the events at the airport on or about 27 January 2011, and relevant preceding events. The fact that the applicant subsequently made a protection visa application is already before the Court as a consequence flowing from these events. The specific content of that protection visa application was not the subject of any focus at the hearing before the Court.
If the Court now were to allow the Minister’s application and read the affidavit of Mr White and all its annexures, especially including the delegate’s decision, the applicant would suffer prejudice in that he would have been deprived of the opportunity to lead any evidence as to the contents of those documents.
While it is the case that this may be addressed, at least in part, by allowing the applicant to adduce further evidence in this regard, given what I have already set out above, such a course would offend, in particular, the principle of finality to which I have already referred.
Ultimately, the Minister’s application now, in particular the attempt, despite the Minister’s protestations to the contrary, to introduce the contents of the delegate’s decision record, must also be seen in light of what the High Court generally said in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 82 ALJR 951. Relevantly, decisions are made in the conduct of litigation. It is not for the Court to prolong matters where the strategies informing those decisions are not ultimately helpful to the party employing them, or simply where a change of mind has occurred.
The Minister’s application to re-open this case is refused. I will accordingly make an order dismissing that application.
Consideration: The Court’s Discretion
The issue therefore, is whether the relief sought should be refused. The Minister presses that the relief should be refused because the applicant has acted in bad faith and come to this Court with “unclean hands”.
To a large extent the essence of the applicant’s case, as expressed before the Court, notwithstanding some stated concession to the contrary, is that the delegate’s decision is infected with jurisdictional error and that the Court should therefore grant the relief sought. To contemplate doing otherwise would lead the Court into the realm of considering the “merits” of the case and therefore engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568).
This part of the applicant’s attack on the Minister’s position must be rejected. Of course it is the case that this Court cannot engage in impermissible merits review. But there is a clear distinction between going down that path and a proper exercise of the Court’s discretion inherent in and arising from the nature of the relief sought by the applicant.
The applicant seeks relief by way of certiorari, prohibition and declaration. As Aronson, Dyer and Groves state[1] (at Ch.12.155), the: “… Court normally has a discretion to refuse certiorari and prohibition, even though the grounds have been established…”.
[1] Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action – Fourth Edition, Lawbook Co., Thomson Reuters, Sydney 2009.
It is not necessary in the current case to consider the various iterations, circumstances, and criteria set out by these authors further at Ch.12.155 to 12.180. This is because, as the Minister submits, the proposition is well settled that an applicant, as in these proceedings, who has dealt in bad faith relevantly with the Minister or his department, and therefore comes to this Court with “unclean hands”, may be disentitled to the relief sought as a matter of the exercise of the Court’s discretion.
The applicant’s submission that where jurisdictional error is found the relief should be granted, subject to consideration of the Court’s discretion in relation to consideration of essentially futility and delay, of itself, admits that the relief sought is discretionary.
Further, the omission of “bad faith” from this consideration appears to ignore what the High Court said in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 at [28], where reference with approval was made to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 176 ALR 219; (2000) 75 ALJR 52 at [55] where Gaudron and Gummow JJ said:
“Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said [19]:
‘For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’”
[Emphasis added.]
In relation to the declaratory relief sought, though both historically and given its nature different considerations apply, for current purposes I do not understand the above authorities to exclude the question of declaratory relief from the ambit of the exercise of the Court’s discretion in granting it.
However, I note two things.
First, it may be said that, in relation to declaratory relief, the relevant proceedings must involve a real question the answer to which must produce some real consequence for the parties, or in the exercise of the discretion it should be considered if the Court’s declaration will produce no foreseeable consequence for the parties (See Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 414 per Lockhart J, and the references respectively to In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257; (1921) 27 ALR 193 and Gardner v Dairy Industry Authority (NSW) (1977) 18 ALR 55 at 69 and 71).
In the present case, I accept that although the applicant’s visitor visa in question, cancelled by the Minister’s delegate, was a relatively short term visa and if not cancelled would only have permitted the applicant to say in Australia for a period of three months from 27 January 2011 (that is until 27 April 2011), there is nonetheless a real question to be considered. One with consequence for the applicant. That is, the applicant’s capacity to be granted another visa for Australia (with the exception of a protection visa). The periods for which he may be excluded from being granted any such visa, and even his travel to many other countries, would be affected by whether or not the cancellation of this visa were to “stand”.
Second, nothing in any of the Court’s consideration of this matter should be taken to infer a “pre-conceived reluctance to grant declaratory relief” which itself may be said to constitute an error in the exercise of this Court’s discretion to grant this remedy (see Sutherland Shire Council v Leyendekkers [1970] 1 NSWR 356; (1970) 91 WN (NSW) 250 at 258 per Street CJ and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581 to 582).
The Minister’s Submissions: The Relief Sought and Bad Faith
In relation to the question of the discretion to grant relief generally in relation to certiorari, prohibition, declaration, and the question of bad faith, I note the Minister’s reliance on:
1)NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 per Finn, Mansfield and Stone JJ at [10] to [14], where relief was refused because of the applicant’s dishonest conduct as found on the facts in that case.
2)Minister for Immigration and Citizenship v Lu [2010] FCAFC 147; (2010) 189 FCR 525 at [45] per Ryan, Rares and Katzmann JJ, where, in a case involving a fraudulent claim on the part of the applicant, the Court said: “… it would be rarely, if ever, that the personal circumstances of an applicant, however meritorious when considered in isolation, could outweigh knowing involvement by that applicant in an endeavour corruptly to pervert the legal or administrative processes for the regulation of his or her status...”.
In light of the above, the Minister submits that the applicant has exhibited bad faith in relation to the administrative process involving his obtaining a visa to travel to Australia, in his intentions, both stated and unstated, in seeking to enter Australia, including at the airport on 27 January 2011, and further (possibly) even in the current legal process by coming to this Court with such “unclean hands” and pressing his suit in the way he asserts. The Minister’s position is that the applicant had shown bad faith in his dealings towards the Minister’s department, and that, although put as an additional, not an alternative basis, he had shown, based on a view of his evidence, bad faith towards the Court.
Mr Johnson submitted that the consideration of the Court’s discretion in the way sought by the Minister arises out of the specifics of what the applicant told the Minister’s department and the airport official, as opposed to what he subsequently put forward in his protection visa application and as confirmed in his evidence before the Court.
The submission relies on what is said to be the tension between what is said in the protection visa application, which asserts a fear of persecutory harm if he were to return to China based on a number of past and ongoing incidents and experiences, and the failure to mention any of this at the airport interview.
Further, that the applicant made statements to the airport officials to the effect of having no difficulty in returning to China after the visit with his mother, which had been the stated intention of his travel to Australia. That his stay in Australia had been prolonged by his mother’s ill-health and not by any fear of return.
The submission is also that if what he said in his protection visa application is “entirely invented” (thus presumably making his conduct at the airport “truthful”) then this would conflict with his evidence to the Court in which he affirmed that everything in his protection visa application was true and correct.
In short, the Minister’s position is that the applicant claimed to be a genuine visitor to Australia, that is, that he intended to visit his mother and then return to China, at a time when there were a range of factors known to him, and which he subsequently put forward in his protection visa application, from which it could be seen and inferred that he misled the Minister’s department. That is, that his intention was not to come and stay in Australia for the purposes of a visit, but to remain for a longer period than that allowed for in the visa, or even permanently, because he feared persecution in China.
Further, that at different times the applicant has given other reasons for wishing to come to Australia and remain here. These were, variously, that he was awaiting his lawyer’s completion of the “legal thing”, and that he needed to stay in Australia because he needed to look after his mother who was ill because his sister, who was resident here, was unable to do so (see page 55 of the transcript (“T”) of the interview annexed to the affidavit of Mr J B Johnson, and not challenged in the annexure to the affidavit of Yan Cheng).
A number of further matters were raised by the Minister specifically in relation to what the applicant said at the airport.
First, at T 37 to T 38, there is a discussion about a message on the applicant’s mobile phone asking him to call the Beijing police. The message was said to be from “lawyer Choo” (Zhu - see the applicant’s affidavit of 8 April 2011 at [58(e)]). The applicant told the airport official that he did not know who the message was from, that the mobile phone was “registered” to his younger sister, and that he only used it occasionally.
In contrast, the applicant’s evidence before the Court was that he did know “lawyer Zhu”, and that the message was in relation to some action in China involving a “missing” three million dollars (variously also, elsewhere in the evidence, referred to as three hundred million dollars).
Mr Johnson’s submission was that when this is considered, and in light of other evidence from the applicant, what he told the airport officer was plainly not true. That is, that a warrant had been issued in China for a person with his name in relation to the missing money which involved an offence that may lead to the death penalty if proven.
The import of this is that it allows the inference to be drawn that the applicant was seeking to conceal from the decision-maker, who ultimately considered and cancelled his visitors visa, an important factor that would have cast doubt on his otherwise stated intention to return to China.
In his subsequent protection visa application the applicant claimed to be facing an arrest warrant in China in relation to the missing three million dollars. In his earlier application for the visitors visa which was ultimately the subject of the cancellation there was no reference to any of this.
A second and related point was said to arise from the reasons given by the applicant as to why, or indeed whether, the police in China were looking for him.
During the consideration of the cancellation of the visa at the airport, the applicant said that there had been a dispute between him and his wife over the custody of their child, and that his wife’s family used their influence to obtain a warrant from the police against him. The suggestion here was that the warrant was not issued in relation to the missing money, but at his wife’s initiative over custody of their daughter. (See T 53 to T 54.) This account of events included that the applicant had searched for his daughter for some time, and when he found her he carried her away and hid her with his relatives.
Mr Johnson also took the Court to the transcript at T 44:
“…
[The delegate]: Is the police looking for you in China?
[The applicant]: I don’t know whether the police will look for me or not.
[The applicant]: The police need to give me an answer.
[The applicant]: Because the video tape shows clearly those people and it’s such a long time the police still have not made many arrests.
[The applicant]: Unless the police want to shut their mouth.
[The applicant]: Because I have evidence that police is involved with this matter.
[The applicant]: If you and the immigration officer help those police who have done that thing.
[The delegate]: No that’s not, that’s not anything about what I’m asking questions about, nothing at all to do with that.
[The applicant]: I can prove that my daughter is not in Australia she is in fact in China.
…”.
Mr Johnson submitted that the applicant gave inconsistent evidence which suggested that he was not being forthright with the Minister’s department.
A third additional point was that the applicant told the airport officer that he faced a better life in China (see T 18 and T 43 to T 44). The submission was that the applicant was plainly focussed on persuading the officer considering cancellation of his visa that there was no reason for him not to ultimately return to China. This is to be unfavourably juxtaposed with the claims in the protection visa application that he would face arrest, and possibly a death penalty. His evidence before the Court suggested the latter to be his state of mind at the relevant time.
A fourth point is that, in his application for the visitor visa, the applicant described himself as having a wife and child and gave the same address for both. The question of the daughter’s whereabouts, at material times, became the subject of various discussions at the airport (see T 19, T 39 to T 41). What can be derived from this is that inconsistent evidence was given as to whether the daughter stayed with his wife or with his relatives. The applicant’s account was said to vary between these two and ultimately concluded in this regard with his statement that he came to Sydney to see his mother and also to tell her that he had found his daughter.
A fifth point is in relation to his marital status. In his visitor visa application the applicant described his marital status as “married”. In his affidavit to the Court of 8 April 2011, he suggested his wife had sought a divorce and that this had been refused in China. However, in his interview with the delegate (see T 50) he made reference to his wife seeking a divorce, but made no reference to the divorce being refused.
The Applicant’s Position
Once the applicant’s, it must be said disproportionate, focus before the Court on the question of merits review is properly understood, what remains is that the applicant’s position before the Court is that his behaviour with the delegate was consistent with his oral evidence before the Court.
In essence, the applicant asserts that when he applied for the visitor visa his intention was to come to Australia to visit his sick mother and to assist his sister. While there were “issues in the background” it was only during the course of the long, and interrupted, interview with the delegate at the airport that he developed a genuine fear of returning to China. This was said to be, in part, because of the nature of the questioning, the environment in which it was conducted, and statements made by the delegate.
In short, the applicant contends that when his conduct is understood in this light, it provides the reconciliation with what the respondent has described as the number of inconsistencies in the applicant’s various statements and conduct. That is, any subsequent changes in what he said occurred were as a result of his growing concerns and fears that developed during, and because of, the questioning at the airport.
Central to this is that it appeared to the applicant that there had been some communication between unknown persons in Beijing and the Minister’s department (that information had been obtained from Beijing) and that the delegate told him that the cancellation of his visa would be notified to “relevant agencies” which he assumed was a reference to Chinese agencies. The applicant became concerned that there was some inter-government connection, and that the allegations against him were being taken seriously by the Chinese authorities.
The Court was taken ultimately to the relevant part of the transcript, that was said to have crystallised the applicant’s concern (at T 61):
“…
[The delegate]: As you are no longer the holder of a visa you have been refused immigration clearance and will be removed from Australia as an unlawful non-citizen.
[The delegate]: Where your visa is evident in your passport it will be stamped inoperative due to the cancellation.
[The delegate]: Please note that the decision to cancel is not merits reviewable under the Migration Act 1958.
[The applicant]: Please note that the decision to cancel your visa has been made in accordance with Section 116 of the Migration Act. [From marked-up version.]
[The delegate]: Other relevant agencies will be advised that your visa has been cancelled.
[The applicant]: Sorry, what agencies?
[The delegate]: Other relevant agencies.
[The delegate]: As you are no longer the holder of a valid visa I am now detaining you under section 189 of the Migration Act.
[The applicant]: She said. Under Section 139 of the Migration Act, you are an unlawful person in Australia. [From marked-up version.]
[The delegate]: The time is now 23.424. [The applicant] would you like to contact your consulate?
[The applicant]: I am now asking for political asylum.
…”.
Consideration
The difficulty for the applicant here is that the reference to “other relevant agencies”, in context, appears to be a reference to other Australian agencies. While it is allowable that cultural and linguistic factors may lead to misunderstandings, there is nothing in this part of the interview, nor elsewhere, to suggest that there had been any secret or sinister communications between the Australian and Chinese authorities involving the applicant.
In his affidavit affirmed on 8 April 2011, the applicant states:
“[63]…
(b) Second, over the course of the interview, I was told by the interviewing officers about having obtained information from Beijing. It became apparent to me that the immigration officers were communicating with someone in China or receiving information from someone in China (either directly or through their embassy in Beijing), and that there was a real prospect that the Chinese government or security forces were behind this:
(i) there was an ongoing issue in the Office of Taiwan Affairs for which I worked that I was involved in a missing USD300 million from its account, which funds were supposed to be used by the Chinese Government to purchase a Taiwan TV station. I have had nothing to [do] with the missing money, but the rumors [sic] about the missing money were published in newspapers and magazines in Hong Kong in December 2010 and it is a current political issue. Previously I had no intention of applying for political asylum because I did not believe that the Chinese government seriously considered me to be involved with this incident and my desire is to live in China with my relatives and my daughter. If my reaction to the rumours was to apply for protection in Australia, this would cause the Chinese government to believe I was involved with the missing money, whereas I believed they did not seriously consider me to be involved. However, given that it was apparent that someone in China was feeding allegations to the Department of Immigration, I became concerned that there was Chinese government interest in this regard;
(ii) whoever was making the allegations was able to communicate directly with the Department of Immigration and Citizenship in Australia. This was of concern because it suggested that it was possibly a government source;
(iii) whoever was making the allegations apparently was monitoring my online activities, such as the blog, and was able to access it even though the blog was password protected;
(iv) whoever was making the allegations was able to time the provision of information to DIAC with the couple of days in which I was in Fiji, which suggested that they were aware of my movements in and out of Australia. This also was of concern to me because it was something more within the capabilities of a government source that [sic] some other source;
(v) to date, I still do not know the source of the allegations;
…”.
The first apparent reference in the interview between the delegate and the applicant to any such communication came from the applicant himself, not any departmental officer (T 44.6):
“[The applicant]: If you and the immigration officer help those police who have done that thing.”
In context, this was a reference to police that the applicant said had been involved in some “matter” involving his daughter and his wife’s family. (It was not entirely clear as the applicant’s evidence was obscure.)
Later in the interview the delegate did say (at T 46.5):
“[The delegate]: Department of Immigration and Citizenship Beijing was contacted today and they accessed a blog that you have written regarding your daily activities.”
How it became apparent to the applicant during the course of the interview that the immigration officers were communicating with the Chinese government security agencies through the Australian Embassy in Beijing, as he now asserts, was never made clear before the Court.
I do note that in the Court Book (filed in these proceedings on 3 March 2011 – predating the date of the making of the applicant’s affidavit), the following is recorded in the immigration inspector’s report (at CB 26.7):
“CLIENT CAME TO NOTICE AS A RESULT OF REFERRAL BY DIAC OFFICER ANITA CHOW THROUGH THE APP SYSTEM FOR BONA FIDE ASSESSMENT.”
Further (at CB 26.8):
“CLIENT HAD REQUESTED A VISITOR VISA TO VISIT HIS MOTHER AND SISTER IN AUSTRALIA FOR 2 WEEKS. HE STAYED FOR APPROX 3 MONTHS TEHN DEPARTED TO FIJI AND RETURNED. FURTHER, DIAC OFFICERS IN BEIJING HAD RECEVIVED AN ALLEGATION THAT THE CLIENT HAD KIDNAPPED HIS DAUGHTER IN CHINA AND WAS PLANNING TO COME TO AUSTRALIA AND APPLY FOR PROTECTION.”
See also relevant documents at SCB 34 to SCB 35 (filed on 6 April 2011):
There is no evidence before the Court that any of these documents were made available to the applicant prior to their filing in these proceedings. However the filings on both occasions were prior to the affirming of the applicant’s affidavit of 8 April 2011.
What was made available to the applicant, as at 27 January 2011, was the “Notice of Intention to Cancel” the visitor visa. Attachment A to this Notice relevantly included the following:
“DIAC Beijing was contacted today and they accessed a blog that you have written regarding your daily activities. On this blog you state that you have spent 306 days in China looking for your daughter and now you are wanted. This information was put to you at interview; initially you stated that the blog was not yours and that the information on the blog was false. However later at interview, you provided information that you had indeed spent 306 days in China looking for your daughter, whom you have now located and you have her secured in a safe place in China. This information exactly matches the information on the blog which you claim was not written by you. Further you admitted at interview that a photograph on the blog was of you and your daughter.
DIAC Beijing also provided a copy of your visa application which you submitted to the embassy on the 13/08/10. On this application you stated you [sic] that you are currently married and that your wife and daughter are remaining in China. At interview today you admitted that you have in fact been separated from your wife for approx. 18 months. This suggests that the information submitted on your application in relation to your marital status was incorrect.”
At best, therefore, there is nothing in the transcript of the interview (or the parts of the recording played), or in what was made available to the applicant at the relevant time, to directly give rise to an inference that the Australian immigration officials were speaking to any government authority in China. Plainly the contact was with Australian Embassy officials in Beijing (the documents that show that the Australian Embassy had received information from sources in China were not made available until after 27 January 2011).
It may be that the applicant drew this inference at that time from his own knowledge of events and issues in China which he was in the process of concealing from the delegate, in which case this supports the Minister’s proposition of bad faith on his part.
In all the circumstances, therefore, the applicant’s evidence before the Court, that over the course of the interview he was told that officers obtained information from Beijing, can only be understood as information from sources other than the Embassy staff when viewed through the prism of the applicant’s own knowledge of relevant events, which he did not properly explain to the delegate.
The Minister’s attack is also focussed on the applicant’s conduct before the delegate, and claimed inconsistencies in what he said both before the delegate and in comparison to what he otherwise said to the department.
The Minister’s charge of bad faith is grounded in the assertion that the applicant lied to the delegate and in part sought to mislead the delegate by omission. Mr Johnson put forward a number of points in this regard. The first two generally relate to the claim that what the applicant said to the delegate was inconsistent with his intention to seek protection in Australia, and his subsequently seeking that protection, and what he put in support of that application.
A number of preliminary matters need to be noted.
First, the interview at the airport was conducted over a very lengthy period. It commenced at 12.45pm (see T 4) and effectively ended at 11.42pm (T 62), when the applicant said he then sought asylum. That is, period of about 11 or so hours, with various breaks. He was also held at the airport for some little time before the interview commenced.
Second, any plain reading of the transcript reveals some deficiencies that lead to concerns about the conduct of the interview process.
For example, at the very beginning the following exchange took place:
“[The delegate]: This is a record of interview between DIAC Officer Erina Kumar and passenger, what’s your name, [the applicant]. Today is 27 January 2011, the time is 12.45.
[The interpreter]: The time is 12.45pm. [From marked-up version.]
[The delegate]: Hello.
[The applicant]: Yes. He said before you ask me any questions I need to contact my lawyer. Please allow me to contact my lawyer.
[The delegate]: Okay can you hear me?
[The applicant]: Or allow me to contact my family.
[The delegate]: Okay. I have not begun the interview, okay. Firstly what I am going to do is actually conduct a baggage search before I pursue the interview but I will start with formalities anyway. Okay I am just going to ask
[The applicant]: Sorry I am translating, you do not have the right to conduct bag search.
[The delegate]: Sorry is he saying that I don’t have the right.
[The applicant]: He said do you have the legal right.
[The delegate]: Yes we do, we do have the right to conduct the search. I will tell you what section. I can give you the information under what section, we do have the right to conduct baggage searches okay.
[The applicant]: Which section, which section please?
[The delegate]: I will give that to you in a moment but we do have. Okay before I go on okay, I am just going to have a word with my supervisor, okay and then I will go and ask you these questions, okay. Just one moment.
Interview suspended while I consult a supervisor.
The time is 12.52, Baggage search to be conducted by Customs Officer Stevens. Okay did you want to use the interpreter? Interpreter, I have the customs officer that is going to conduct the baggage search.
…”.
Although this part of the interview was conducted by a different officer (that is, not the delegate who ultimately cancelled the visa) it is illustrative of the poor process, and subsequently poor interview technique and environment, provided by the departmental officers. The officer states at the beginning that “this is a record of interview”. This is almost immediately followed by: “I have not begun the interview, okay.” The applicant was never told under what section (the Act is never identified) the officer had the authority to conduct the baggage search. Presumably the officer’s supervisor, whom she said she consulted, did not know the section either.
It is not clear what the delegate was doing when, some time into the interview (T 11), she told the applicant: “…So the actual interview is commencing now at 14.38” (nearly two hours after the interview was said earlier to have commenced).
There were some problems with interpretation or, at least in one instance it appears, comprehension on the part of the delegate (see at T 20.7):
“…
[The applicant]: Okay, personally I prefer to live in China, I live a better life in China than Australia and also the Chinese New Year and Spring Festival is around the corner, I really would like to stay in China but I do not have any choice. Hello…
[The delegate]: Sorry just one moment. Do you realise that you said exactly the opposite only a while ago.
[The applicant]: What I said before is totally consistent with what I said now, with what I have said.
[The delegate] Okay.
[The applicant]: It is not possible to make 2 different statements.
Okay if you thought it different in my statement please point them out.
[The delegate] Look just a little while ago you said personally I believe I have a better life in Australia and now you say personally I feel I have a better life in China, so.
[The applicant]: May be it came through wrong in the translation, I did say, he did say he prefer to live in China than Australia he always say that, may be it did not come through in the translation.
Okay what I said is the life have, the life in China is much better than life in Australia.
…”.
However, the issue appears to have been one of comprehension rather than interpretation, given that earlier the applicant said (at T 18.3): “Personally I believe I live a better life in China than Australia”.
Further, it was clear that the delegate and the applicant had a conversation while the recording device had been switched off (see at T 36.4).
The length of time of the process at the airport, examples such as those referred to above, the difficulties involved in the use of interpreters (particularly by telephone), other factors such as the applicant’s claimed medical condition (low blood sugar – see at T 13.4), the difficulties in organising access to his legal representatives, the interruption to his conversation with his lawyer (see the applicant’s affidavit of 8 April 2011 at [37] and Ms Tong’s affidavit of 17 March 2011 at [9]), and the “restricted” access to food and drink are all factors present in the current case that provide a basis for Mr Reynolds to submit that the claimed inconsistencies or inadequacies in what the applicant said at the airport can be satisfactorily explained.
Given this, it was never made clear before the Court why the applicant’s legal representatives insisted on the Court listening to long excerpts of the interview recording. Matters as to tone and like did not add, or subtract, from what can plainly be seen in the transcript, even as amended by Yan Cheng’s evidence. Nothing of substance therefore can be derived from this.
However, what does sit, at the very least, in balance with the above is that it must also be said that, on a plain reading of the transcript of the interview, the applicant himself contributed to the difficulty and the length of the interview by the plainly non-responsive nature of his answers (see for example: at T 44.7:
“ [The delegate]: No that’s not, that’s not anything about what I’m asking questions about, nothing at all to do with that.”
Further, it cannot be said that the applicant assisted his cause in this regard while giving evidence before the Court. For example, at the interview the applicant was asked about a message on his mobile phone concerning the missing three million dollars. He was told that the message came from a “lawyer Choo”. The applicant’s response was that he did not know this person, he did not know where the message came from, that the mobile phone was registered in his sister’s name, and that he only occasionally used this phone. In cross-examination before the Court the applicant agreed that he knew who “lawyer Zhu” was, that he knew of the missing three million dollars (and therefore the context in which the message was sent), and agreed that he had not told the delegate that he knew the lawyer and did not tell her that he had been involved in the matter of the allegation of the missing three million dollars.
As set out above, the Minister relies on a number of points, said to arise from the circumstances, to demonstrate bad faith on the part of the applicant. The first two generally relate to the applicant’s intentions and when he formed the intention to apply for a protection visa.
The central issue, from the Minister’s perspective, is the applicant’s intention in relation to whether he would seek to abide by his visitor visa conditions or whether, at the time prior to his claiming asylum, he deceived, misrepresented or lied to the delegate.
In addition to the applicant’s statement that he preferred to live in China, that life was better there and that he had business interests there (see for example at [100] above), Mr Johnson also relied on what appears at T 55.1:
“[The applicant]: After the lawyer has finished doing the legal thing I will return to China of course I will return to China because my daughter is still there.”
This was to be seen in light of Ms Tong’s evidence (in her affidavit of 7 April 2011) that she told a departmental officer on 2 February 2011 that the applicant “… has genuine claims for protection…” (at [4]).
The thrust of the Minister’s position is that there is a tension between the applicant presenting to the delegate as a genuine visitor, and also applying for protection, and that Ms Tong’s evidence does not remove that tension.
Taken on its own, I agree with Mr Reynolds that this part of Ms Tong’s evidence, arising from and directed to a point in time after the cancellation of the visitor visa, does not assist the Minister in revealing the applicant’s intention, and hence whether he misrepresented his position, up to the point of cancellation of the visa.
In these circumstances, once the temporal difference is properly applied, Mr Reynolds is correct to submit that there appears to be no inconsistency.
The applicant’s explanation of his reason for coming to Australia is that he intended to visit his mother who was in bad health, and that he gave this as his reason for wanting to travel to Australia. At the time of making his application for the visitor visa he was unclear as to the extent of her health situation. Further, he wanted to visit his sister. (See CB 1 to CB 12.)
The applicant’s position is that in his application for the visitor visa he noted that he wished to enter Australia on multiple occasions. The relevance of this submission was that after arrival his mother’s doctor referred her for specialist consultation and that he decided to remain beyond the intended two weeks to see the outcome of this referral. The ultimate “extension” of his stay evolved as a result of his mother’s situation, and his father’s incapacity to travel.
The applicant’s explanation is that the visitor visa had been issued with a multiple entry to Australia facility for a stay of three months on each occasion. Consistent with this, his stated intention in his visitor visa application, and his desire not to breach Australian law at the point of the three month expiry, and given his mother’s unresolved health situation, he determined to go to Fiji and re-enter Australia, thus ensuring that his continued stay did not breach his visa conditions or Australian law.
This aspect of the applicant’s evidence before the Court was not weakened in cross-examination. Ultimately, and central to the respondent’s position, the respondent did not satisfactorily explain why, if the elements and factors to fear persecutory harm were in existence at some time prior to the interview on 27 January 2011, the applicant did not apply for a protection visa at that time. As Mr Reynolds asked, why would the applicant embark on the circuitous route of travelling to Fiji to re-enter Australia again as a visitor if he intended all along to apply for a protection visa?
Of course one answer may be that the applicant sought to extend his stay in Australia as a visitor as long as possible and then make a protection visa application at a later time of his choosing.
What does support this speculation, and raise it to an inference that can be drawn from probative evidence in support of the Minister’s position, and counts against the applicant, is what is also said by Ms Tong in the same affidavit (affirmed on 8 April 2011) (in reporting her conversation with a department officer over arrangements for the applicant to attend an interview in relation to his particular visa application at the department):
“…
After hearing my request, we had a conversation to the following effect:
Ms Sly said:
‘We only allow the interview to be rescheduled if the applicant cannot attend the interview for medical reasons, and you need to obtain medical certificate or a psychologist’ report.’
I said:
‘I do not have such medical certificate. [The applicant] is not doing well in detention, we are organising him to see a psychologist. But the main reason we ask for the interview to be postponed is because [the applicant] wants to concentrate on his case about the visitor visa cancellation currently in the court and he needs to prepare a lot of documents for the court matter.’
Ms Sly said:
‘We cannot postpone the interview for that reason. If [the applicant] cannot attend the interview, he can withdraw his application for a protection visa. I remind you that the protection visa application is the only thing to keep [the applicant] in Australia. If he wishes to withdraw the application, he will be removed from Australia tomorrow.’
I said:
‘I do not have instructions to withdraw the application; [the applicant] has genuine claims for protection. I only have instructions to ask for the interview to be postponed. [The applicant] did not prepare to apply for protection visa. It all happened suddenly; He was forced into it because he did not want to be returned to China.’
Ms Sly said:
‘Be careful with what you said, I will write a note of what you told me on [the applicant’s] file. People should not use protection visa to delay removing.’
I said:
‘I am only stating a fact. [The applicant] did not need to apply for a protection visa, had his visitor visa not been cancelled. He would have a visa which allows him to stay in Australia for three months with multiple returns. This is why he wants to have this visitor visa issue resolved first.’
Ms Sly said:
‘We will not postpone the interview.’”
[Emphasis added.]
In my view Ms Tong, the applicant’s migration agent, provides the clear and plausible explanation for what has occurred. Any plain reading of the evidence offered by her, and indeed when viewed also in the context of that part of her evidence relied on by Mr Johnson, supports the finding that the applicant did demonstrate bad faith in the way that he dealt with the Minister’s department. It puts those parts of the transcript of the airport interview, and the matters the Minister now relies upon, in a different light.
Elsewhere in the evidence it is clear (see also further below) that at the time of the interview, and certainly at its commencement, there were certain events (at its core the missing three million dollars, the arrest warrant and related events, the matter of the applicant’s daughter and the applicant’s relationship with his former wife and the police) that would cause him not to want to return to China.
Whether the applicant had “genuine” claims to protection or not is not an issue that the Court should, or could, concern itself with. To do so would be to cross over the line into the merits review that Mr Reynolds forcefully and repeatedly cautioned the Court not to do.
This part of Ms Tong’s evidence, however, illustrates what was not addressed by the applicant’s submissions. That is, that there is a distinction between determining whether the applicant was a genuine visitor or not (a task rightly left to the Minister given the provisions of the Migration Act), or indeed whether he was “genuine” in subsequently making a protection visa application, and whether he lied, either directly or by omission, or misrepresented the relevant situation, in the airport interview such that it can be said that he acted at that time, and up to that time, in bad faith towards the Minister and his officials.
What Ms Tong plainly says is that the applicant only applied for a protection visa because his visitor visa was cancelled. He was forced into it because he did not want to return to China. This is plainly inconsistent with what he reportedly told the delegate.
In the circumstances, and in light of the other evidence referred to above, that could only mean that he did not want to return because of the events surrounding the missing three million dollars, his family, the police etc. In this light, Ms Tong’s evidence explains that the applicant chose to use the facility of the visitor visa with multiple entries to avoid returning to China, but was “forced” into applying for the protection visa when this facility was no longer available to him.
I can only understand her evidence (that the applicant would not have needed to apply for a protection visa had his visitor visa not been cancelled) as a plain and clear admission that while he was telling the delegate, for example, that he wanted to go back to China because life was better there, the real situation was that he did not want to go back and would not need to go back while his visitor visa with multiple entries was in force.
Ms Tong herself, therefore, provides the basis to say that the applicant did not tell the truth to, or concealed aspects of the truth from, the delegate at the interview.
The remainder of the points relied on by the Minister, to varying degrees, when seen in this light, provide further support to the Minister’s position.
For example, the Minister relies on that part of the transcript (T 37 to T 38) concerning messages found on the applicant’s phone. Mr Reynolds submitted that the particular message as reported at that part of the transcript was meaningless and does not go to the issue of whether the applicant intended to remain in Australia.
Further, that the applicant, as he says in his affidavit of 8 April 2011 at [58(e)] would have made a claim for “privilege” (legal professional privilege). I understood this in context to mean that he would have done so had he known at that time that he could have done so, given that the message was from “lawyer Choo”.
Mr Reynolds, and the applicant himself, given what he now says in his affidavit, appear to have overlooked one critical fact. He told the delegate that he did not know “this person”. In this circumstance, it would have been impossible for the applicant to have claimed any privilege, even if such a claim would have been otherwise available.
The submission, and indeed the applicant’s evidence, now reinforces the view that the applicant did not tell the truth to the delegate, given that the applicant now asserts that he did know “lawyer Zhu”.
The complaint was made before the Court that this part of the interview is unreliable and that caution should be exercised in relying on it. The applicant points to that part of the transcript for example where the interpreter states (at T 37.6):
“I can hardly hear him…”
Then at T 38.3:
“… I cannot hear him tell him he has to go slow.”
It can be accepted that, in these circumstances, the situation was not ideal for the interpreter. But there is nothing from the applicant to say that he could not hear the interpreter. Even further, beyond this point, the interview appeared to progress without further difficulty in this regard. This part of the interview was played in Court at the hearing. There was nothing arising from the audio beyond what has already been referred to above.
It did not appear from the audio or the transcript that the applicant was confused. What the applicant told the delegate was clear. Whether the lawyer was described as “Choo” or “Zhu”, and whether the relevant amount was three hundred million dollars or three million dollars, the issue was that what was put to him was that there was a message on his phone (found in his possession at the airport) from a lawyer in China and it referred to an amount of money that had gone missing. It is now disingenuous for the applicant to say that he was confused because of any difference between “Choo” and “Zhu”, and the actual amount. The substance of what was put to him was clear. His response, given subsequent evidence, reveals he did not tell the truth.
The Minister also relies on what is set out at T 53 to T 54 concerning the question of whether the police were looking for the applicant in China, whether an arrest warrant had been issued, and matters relating to his daughter, mother and wife.
What transpires at T 54 to T 55, and when seen in light of what immediately precedes it (at T 52 to T 53), does not reveal that the applicant was confused, but rather that his answers had the effect of being confusing to the listener (see at page 52.6):
“[The applicant]: I can tell you the true situation.
[The delegate]: Tell you the true what?
[The applicant]: The true circumstances, situations.
[The delegate]: This is what I wanted from the beginning.”
The applicant told the delegate of the difficulties between himself and his wife, that his wife and others had beaten his mother and “then I have never seen my child…” (see generally at T 52 and T 52.10). This account was then expanded to include that the police had beaten his mother, taken his daughter and some property, and that he kept looking for his daughter and “the policeman” in China (T 53.4).
What follows at T 53 to T 54, with virtually no interruption from the delegate, is an account of events that ranges from finding his daughter, carrying her away, that his wife and other of her family members had a “fight with someone else”, that they were injured, that police in Beijing “set up a case”, the police “never looked for me”, he heard an arrest warrant had been issued, that he was surprised when he heard this news, and that the warrant was for him.
At T 54.5:
“[The applicant]: Because since I have been in Australia I have kept constant contact with Beijing Police.
[The applicant]: No one in the Police of in the Department told me this news.
[The applicant]: And nor in the website of the Beijing Police did I hear any news about my arrest warrant.
[The applicant]: Therefore I believe [someone is persecuting me through the police]. (From marked up version.)
[The applicant]: Someone is persecuting me through the police.
[The delegate]: Somebody’s what sorry?
[The applicant]: Persecuting.
[The delegate]: Persecuting? Ok.
[The applicant]: [Because] The video tape shows on the day my mother was beaten up my wife was in the elevator giving bribes [or money] to the police. (From marked up version.)
[The applicant]: That’s why after I put my daughter somewhere in safety I came to Australia to see my mother.
[The applicant]: To inspect the dangerous environment.
[The applicant]: After the lawyer has finished doing the legal thing I will return to China of course I will return to China because my daughter is still there.
[The applicant]: After today the Police in Beijing has not been able to point out any evidence to prove that I have done anything wrong according to the law.”
It cannot be said that the applicant was being clear. The delegate made little interruption other than to try to understand and clarify the applicant’s leap from one thought to another. No difficulties of interpretation are apparent here.
What remains is that this sequence of statements by the applicant does contain inconsistencies, as submitted by Mr Johnson. As it stands, the applicant was unclear as to whether the police were looking for him, and importantly the reason for it. No elements of interpretation difficulties or the environment in which the interview was conducted can cancel the applicant’s attempts to obscure and conceal.
When this is viewed particularly in light of his subsequent evidence before the Court (see generally his affidavits), it is clear that the applicant did not provide a complete or consistent account.
The further matters relied on by the Minister, concerning the applicant’s statement that he had a better life in China, the absence at the interview of any reference to the missing money, the arrest warrant and like matters as being a source of fear of persecutory harm, when seen in light of Ms Tong’s evidence, support the Minister’s assertion of bad faith on the part of the applicant for reasons already refereed to above.
Conclusion
In all, the delegate’s decision to cancel the applicant’s visa is affected by jurisdictional error as the Minister concedes. However the relief the applicant seeks is at the Court’s discretion. Bad faith on the part of the applicant is a basis on which such relief can be refused. I am satisfied that, on the evidence, the applicant acted in bad faith before the Minister’s department. Ms Tong’s evidence provides both the basis for, and the explanation of the applicant’s conduct. In the circumstances it is appropriate that the applicant not be granted the relief which he may otherwise have been able to obtain. I will make an order dismissing the application on this basis.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 2 June 2011
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