WZAustralian National University v Minister for Immigration

[2009] FMCA 764

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZANU v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 764

MIGRATION – Visa – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision affirming decision of delegate – citizen of China claiming fear of persecution on the basis of religion – credibility – merits review – conduct of migration agent – where application for protection visa and application for review by the Refugee Review Tribunal contained an address in Sydney which was not the applicant’s residential address – where the applicant at relevant times resided in Western Australia – no jurisdictional error.

PRACTICE & PROCEDURE – Identity – where details in application for protection visa and application for review by Refugee Review Tribunal varied  greatly from applicant’s evidence to the Tribunal – where Court took evidence to satisfy itself that the person before the Court was in fact the applicant for the visa and the applicant for review by the Refugee Review Tribunal.  

Migration Act 1958 (Cth), ss.422B, 424, 424A, 424A(1), 424A(3), 424B, 424B(2), 425, 425A, 426A, 474(2)

Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706
SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693

Applicant: WZANU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 96 of 2009

Judgment of: Scarlett FM

Hearing date: 10 August 2009

Date of Last Submission: 10 August 2009

Delivered at: Perth

Delivered on: 11 August 2009

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Mr S. Thackrah

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in accordance with Part II, Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 96 of 2009

WZANU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons revised from transcript)

Application

1. The application before the Court is an application for review of a decision of the Refugee Review Tribunal that was made on 25 May 2009. The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.

Preliminary issue – identity of the applicant

1. There was a preliminary issue in this matter which needed to be resolved, and that concerned the identity of the applicant. The Court Book shows that the applicant, who is a citizen of the Peoples Republic of China, arrived in Australia on 18 September 2008. On 28 October 2008, an application for a Protection (Class XA) visa was received by the Department of Immigration and Citizenship at Sydney.

2. That application was typed and showed that the applicant resided at an address, being 14 Zanco Road, Marsfield, New South Wales. Marsfield is a suburb of Sydney. The application again referred to the address of 14 Zanco Road, Marsfield as an address at which the applicant had resided since September 2008.[1] A signature appears on the application in Chinese characters, showing that a declaration was made before a Justice of the Peace on 27 October 2008. That declaration shows the name of the applicant, which has been handwritten, together with the handwritten address, 14 Zanco Road, Marsfield, NSW, 2122.

   [1] See Court Book at page 15.

3. Along with the application for protection visa, the Department received a two-page typed statement from the applicant, signed on each page. That indicated that she was a married woman aged 24 who sought protection in Australia as a result of her religious belief, being a member of a local church in China. Along with the application and the applicant’s statement, the Department received a form of appointment of a migration agent. That document showed the applicant’s real name, together with the name which was on the passport that the applicant had used to enter Australia. It also showed the address of 14 Zanco Road, Marsfield.

4. It should be noted that there is no issue as to the fact that the applicant entered Australia on the passport of another person. In the application for protection visa, the applicant disclosed that she had done so and provided her real identification details and a copy of her real passport. The appointment of the migration agent showed that the applicant appointed a migration agent based in Sydney named Weiming Qian, whose postal address is Post Office Box 1510, Auburn, NSW, 1835. Those documents were submitted to the Department at its Sydney office on 28 October 2008.

5. The Department wrote to the applicant care of her migration agent, Ms Weiming Qian, at Good Fortune Company, Post Office Box 1510, Auburn, New South Wales, 1835. The letter shows that a copy of that document was forwarded to the applicant at 14 Zanco Road, Marsfield. The letter invited the applicant to attend an interview with an officer of the Department at the Department’s office in Lee Street, Sydney on 9 January 2009.[2] The applicant’s migration agent replied to that letter on 11 January 2009, providing a Chinese ID and residential registration for the applicant.

   [2] See Court Book at page 40.

6. The Department conducted an interview and on 24 January 2009 a delegate of the Minister refused the application for a protection visa. The delegate noted the claims of the applicant, noted that she had attended the interview, but found:

   The applicant’s claims are brief and unsubstantiated both in her statement of claims lodged with her protection visa application as well as in the departmental interview. At the interview she was asked questions in relation to her Christian beliefs and her need for protection from the Chinese Government, and she was unable to provide any credible details or convincible reasons in support of her claims.[3]

   [3] See Court Book at page 61.

7. After the Minister’s delegate had refused the application for protection visa, an application was made to the Tribunal for a review of that decision by the delegate. The Court Book shows that the application was received by the Tribunal in Sydney on 22 February 2009.[4] That application was printed by hand and showed the applicant’s residential address in Australia as “14 Zanco Road, Marsfield, NSW, 2122”.[5] The name of the applicant’s advisor was given as Ms Weiming Qian, Good Fortune Co, PO Box 1510, Auburn, NSW, 1835. The document was signed in Chinese writing. The application was accompanied by the notification of refusal by the department.

   [4] See Court Book at page 64.

   [5] See Court Book at page 65.

8. The Tribunal wrote to the applicant’s migration advisor, Weiming Qian, on 23 February 2009, acknowledging the application for review. The letter also contained a letter addressed to the applicant, headed “Acknowledgement of Application”. On 20 March 2009 the Tribunal wrote to the applicant’s migration agent inviting the applicant to appear at a hearing before the tribunal. The hearing was set at the Tribunal’s premises, Level 11, 83 Clarence Street, Sydney on 20 April 2009. The Court Book shows that the Tribunal received a response to hearing invitation indicating that the applicant intended to take part in the Tribunal hearing scheduled for 20 April 2009 and required an interpreter in the Mandarin language. That document appears to have been received by fax on 24 March 2009.[6]

   [6] See Court Book at page 79.

9. What then happened is that the Tribunal received a letter by fax marked “urgent” from the applicant’s migration agent. That document was dated 15 April 2009. That document advised that the applicant was living at an address in Northam, Western Australia and hopes to be interviewed in Perth. The fax asked:

   Would you please arrange that place for interview?[7]

   [7] See Court Book at page 80.

10. The Tribunal’s records also show that the applicant’s migration agent telephoned the tribunal at 12.27 pm on 15 April 2009.[8] The Tribunal postponed the hearing and on 22 April 2009 wrote to the applicant advising that a fresh hearing would take place on 8 May 2009 at an address in West Perth. That hearing was to take place by video conference, with the Tribunal Member and the interpreter in Sydney. The Tribunal hearing record shows that the applicant attended the hearing by video conference in West Perth on 8 May 2009. The Tribunal signed its decision on 25 May 2009, affirming a decision not to grant the applicant a protection class XA visa.

    [8] See Court Book at page 81.

11. On reading through the Tribunal decision record, it became clear that the account given to the Tribunal by the applicant, or the apparent applicant, at the hearing varied significantly from the scenario presented to the Department and the Tribunal prior to 15 April 2009. The Tribunal recorded the applicant’s evidence on this issue in this way:

    The applicant arrived in Australia on 18 September 2008. She first arrived in Melbourne and was accompanied by another person on the trip to Australia but she did not know this person and told me that he was another of the agent who had arranged her trip to Australia. She stated that no one met her at Melbourne airport, however, she was lucky enough to meet a Chinese person at the airport and she asked him where she could buy an air ticket for Perth. This person helped her, and took her to the domestic airline counter where she bought a ticket. She had brought Australian dollars with from China so that she could purchase the air ticket because she knew that her destination was Perth. She caught a flight to Perth and when she arrived she telephoned the person who was meeting her in Western Australia. When I questioned her further about her accommodation arrangements she explained that she had a friend in China who knew someone in Australia who wanted to be introduced to a Chinese girl. This person collected her at the airport and took her to his home where she has been living since she arrived in Australia.[9]

    [9] See Court Book at page 104, para.34.

12. It can be seen that the account given by the applicant of her movements since she arrived in Australia on 18 September 2008 differed significantly from the account presented to the Department and to the Tribunal by the documents submitted by the migration agent. It was for this reason that I was concerned that it was necessary for the applicant to establish her identity. If the person appearing before the Court was not the applicant, she would, of course, have no standing to carry on the proceedings before the Court. Accordingly, the applicant gave evidence and was questioned from the bench and also by Mr Thackrah who appeared for the Minister.

13. The applicant told the Court that she arrived in Australia on 18 September 2008 and that she arrived in Melbourne. When asked how long she stayed in Melbourne she said, “Less than one day.” When asked where she went after that she said, “I came to Perth.” She was asked by the court, “Have you lived in Perth ever since?” and she replied, “Correct.” She was asked if she had lived in any other cities in Australia and she said, “No, but I’ve been to Sydney for two hearings with regard to this application.” She was then asked to tell the Court about those two hearings. Initially, she had some difficulty remembering the dates, but confirmed that she had applied for a protection visa on 28 October 2008. She identified her signature on the copy of the application.[10]

    [10] See Transcript at pages 5-6; see Court Book at page 10.

14. She told the Court that she could not read or write in English. She was asked how she was able to prepare a typed application in English if she could not read or write English and she said, “Some of the items were helped to fill in by the migration agent.” When asked if she remembered the name of the migration agent, the applicant said, “The surname Qian”, which she spelt Q-i-a-n, and she went on to say, “and the first name is Weiming,” which she spelt W-e-i-m-i-n-g. When asked where she was when she signed the document she told the Court that she was in Perth and that the migration agent faxed the application for her to sign. Once she had signed it, she posted the document back to her.[11]

    [11] See Transcript at page 7.

15. When asked if she had ever met this agent she said, “The first time, when I went to Sydney, I met him. Sorry, is the female, is I met her.” She was asked if she had ever lived in Sydney and she said, “Yes, four days.” She said she could not remember the date, but she stayed for four days in Sydney because she had to organise the information for the interview. When asked where in Sydney did she live she said, “I was staying at my migration agent’s place on a temporary basis.” When asked, “All right, and where was that?” the applicant said, “Auburn.” She was asked if she knew an address in Sydney called 14 Zanco Road, Marsfield. The applicant’s answer was, after the address has been spelled to her, “Thank you. This seems right to me. This seems to be the postal address that I gave to the Immigration Department so that they can post any document to me.” She was asked, “Why did you do that if you were living in Perth?” She said, “Just because I cannot understand the letter from the Immigration Department. I need the migration agent to read it for me.” She was then asked if the migration agent lived at Auburn and she agreed that that was so. She was asked if she had ever been to the address at 14 Zanco Road, Marsfield, and she said no. [12]

    [12] See Transcript at pages 7-8.

16. In cross-examination by Mr Thackrah for the Minister, she was asked about the address 14 Zanco Road, Marsfield and she told the Court that that address was the address of a friend and the friend would deliver the documents to her migration agent. She was asked;

    MR THACKRAH:    And the arrangement was that the documents from the department would be sent to your friend?

    THE INTERPRETER:  Yes.

    MR THACKRAH:    And then your friend would send your documents to the migration agent. Is that correct?

    THE INTERPRETER:  Yes.[13]

    [13] See Transcript at page 9.

17. As a result of that evidence I indicated that I was satisfied that the applicant was the person who had applied for a protection visa. I had the opportunity to observe her demeanour in the witness box and I listened to her evidence quite carefully. It appeared to me that the applicant was endeavouring to answer the questions truthfully, even though it was clear that she found court proceedings stressful and at times distressing. This is understandable in the circumstances. Accordingly, I decided that I was, and I remain, satisfied that the person who appeared before me was the applicant for the protection visa and, more importantly, was the applicant to the Tribunal for review of the delegate’s decision, and was the applicant to this Court for judicial review of the decision of the Tribunal. As such, I was satisfied that she had standing to continue these proceedings before the Court.

18. I am also satisfied that the applicant is unable to read or write English, and appears to speak very little English. It would be clear that in those circumstances it would be well nigh impossible for her to understand what was written on a document in English, unless someone translated it for her.

Conduct of the migration agent

1. Whilst I was satisfied as to the applicant’s identity, there remains a serious concern about the actions of the migration agent in these proceedings. It is clear that the residential address given on the application for a protection visa was false. The applicant said that she has never lived at 14 Zanco Road, Marsfield, and indeed has not been there.

2. It is also clear that the residential address given on the application to the Tribunal for review of the delegate’s decision was false. It is clear that the Tribunal was not advised of the applicant’s real address in Western Australia, where apparently she had been living since shortly after her arrival on 18 September 2008, until 15 April 2009, after which time a Tribunal hearing in Sydney had already been arranged and had to be postponed. It is clear that the agent was aware that the applicant was residing in Western Australia, but failed to disclose that address to the Department, or, until 15 April 2009, to the Tribunal.

3. This is a matter that should be a cause for concern to the Minister and to the Principal Member of the Tribunal. The facts, in my view, call for an investigation by the Department into the actions of the agent in this case, and call for an explanation by the agent as to the way that she has conducted the matter. What further action is taken by the Minister, or any other body, in respect of the migration agent is entirely a matter for them, but I would consider that the cause for concern is quite apparent. As I am satisfied that the person who appeared before the court is indeed the applicant, it was appropriate for the Court to continue the application for review.

Applicant’s claims

1. The applicant’s claims are set out in her typed statement.[14] She claimed that she and her husband belonged to the Fuqing local church in China, and on one occasion, when they were conducting a church meeting, three policemen arrived at the house and, although the people at the house endeavoured to pretend that nothing in the way of a church meeting was happening, they were taken to the police station. The applicant set out that her husband and her were detained for 15 days, on grounds of attending illegal gatherings, and were sent to a detention centre. The applicant set out in her statement that on 7 July, presumably 2008, she and her husband were released from detention and were required to report to the police weekly.

   [14] See Court book at pages 32-33.

2. The applicant set out that she decided to seek religious freedom in a foreign country and so approached an agency in Fuqing. She confessed frankly in her statement:

   I left my two young sons and my husband in Sep. 2008. Holding the false passport, I arrived in Australia. I admitted this is an immoral behaviour, especially as I am a Christian. But I was really at the brink of despair. I repented to God and asked God to forgive me. I hope the Australian Government would protect me, so I could have religious freedom and live in no fear.”[15]

   [15] See Court Book at page 33.

3. The delegate of the Minister, after the interview with the applicant, refused the application for a protection visa basically on the ground of not being satisfied as to the credibility of the applicant’s claims.

Tribunal findings and reasons

1. The Tribunal, after hearing the applicant’s evidence, refused the application for a visa. In the decision record, the Tribunal set out a summary of the applicant’s claims in her statement accompanying the application for a protection visa, and summarised the applicant’s evidence to the Tribunal hearing. The Tribunal also referred to independent country information, in particular, the latest United States International Religious Freedom Report (2008) about church attendance in China and about bibles, and set out quotes from there. The Tribunal also referred to information about the Fujian province, referring to the 2006 edition of China Christian Millions by one Lambert, and referred also to a report from the Canadian Immigration and Refugee Board, dated September 2005, about the treatment of Christians in Southern China.

1. In the Tribunal’s findings and reasons, the Tribunal set out the applicant’s claims and accepted that the applicant is a citizen of the People’s Republic of China. That decision was made after the Tribunal Member had seen a copy of an identity card and heard the applicant’s evidence. The Tribunal accepted that the applicant was married, that her husband and two children are living in China, and that her children were living with her mother in the home village in Fujian province. However, the Tribunal did not accept significant parts of the applicant’s claims. The Tribunal found that the applicant knew little about Christian practices and beliefs, despite having a superficial knowledge of some matters of Christian doctrine.

2. The Tribunal did not accept that the applicant had been arrested, detained and mistreated for reasons of attendance at an unofficial church gathering and membership of an unofficial church group. The Tribunal went on to find:

   As I did not accept that the applicant had attended an unofficial church in Fuqing, I do not accept these claims; however, I also found her evidence regarding her claimed detention and mistreatment to be unsatisfactory. She claimed that she and her husband were arrested as part of a larger group, that they were taken to a detention centre and that they were released after large payments made by relatives. The applicant gave inconsistent evidence in that she had stated in her written claims that she and her husband had been detained on 22 June 2008 and were released on 7 July 2008 however at hearing she claimed that she was questioned and detained by local police in June 2008 and was released after the payment of money to police by relatives on 2 July 2008 and her husband was released on 15 July 2008.[16]

   [16] See Court Book at page 111, para.71.

3. The Tribunal accepted the applicant’s claims as to how she travelled to Australia and her claims about her movements once she had arrived in Australia on 18 September 2008. However, the Tribunal did not accept that private bible study in Australia or previous attendance at official church services in China would put the applicant at any risk of harm if she should return to China, at the time of the hearing or in the foreseeable future. The Tribunal did not accept that the applicant would seek to join a non-official underground church if she returned to China, at the time of the hearing or in the foreseeable future. Thus, the Tribunal did not accept that the applicant faced a real chance of persecution for reasons of religion or imputed political opinion should she return to China, and was not satisfied that the applicant has a well-founded fear of persecution for any convention-related reasons.

4. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant the applicant a Protection (Class XA) visa.

Application for judicial review

1. The applicant commenced proceedings in this Court for judicial review by filing an application and an affidavit in support on 18 June 2009. The affidavit annexed a copy of the Tribunal decision and stated briefly the factual basis of the applicant’s claim for protection:

   1      I was a Christian in China and there is no religious freedom in China.

   2      Chinese government never allows house gathering to worship God. I am Christioan [sic] and I will be put in jail if I were caught by police for attending house church gathering. I fear to go back to China.

2. I note that there is no certification by the person before whom the applicant swore or affirmed that affidavit that the contents of her affidavit were translated and read over to her in her own language, and I note that the applicant speaks very little English and does not read or write English. Interestingly enough, the Justice of the Peace before whom the affidavit was sworn or adjourned was the applicant’s migration agent, Weiming Qian. The application for review asks for orders:

   1.to set aside the Tribunal’s decision; and

   2.to have the Tribunal review the applicant’s case again.

3. It has been explained to the applicant that in order to make the orders which she seeks, it would be necessary to satisfy the Court that the Tribunal decision was affected by jurisdictional error. The grounds of the application referring to jurisdictional error are three in number, which I will quote:

   1.       I can not go back to China, I will be persecuted by Chinese government for Christian.

   2.       RRT considered my case unfairely [sic]. They doubt my claim without substantive evidence.

   3.       Procedural fairness has been denied by RRT.

Submissions

1. The applicant did not file a written outline of submissions, but made oral submissions to the Court. It will be clear that the first ground set out in the application, which was a claim that the applicant cannot go back to China because she would be persecuted by the Chinese government, is no more than a restatement of her claim for refugee status. It does not allege any jurisdictional error. All it does is challenge the Tribunal’s factual decision and, of course, it is well established that the Court has no jurisdiction to deal with matters relating to merits review. Grounds (2) and (3), however, do claim error on the part of the Tribunal.

2. The second ground claims that the Tribunal considered the applicant’s case unfairly and doubted her claim without substantive evidence. The applicant was asked by the Court as to why she considered she had been treated unfairly and she replied;

   Because I am, in fact, a Christian.

   She was asked in respect of her third ground, which alleged a denial of procedural fairness, and she said she was denied procedural fairness because she, in fact, suffered from persecution by the Chinese government and that is why she had to use this other person’s passport. The applicant went on to complain that she did not understand why someone who had been persecuted that was using someone else’s passport could not get a working visa from the Department, but someone who used their own passport could get a visa that allowed them to work.

3. The applicant went on to complain that the Tribunal did not ask her about her Christian activity and did not ask her how she was persecuted in China. She claimed that the Tribunal did not ask her details about when the police caught her. During her submissions, the applicant became somewhat distressed and the Court adjourned for a period of five minutes so that the applicant could recover her composure. When the hearing resumed, the applicant went on to submit that she understood it was legal to attend an official church in China, but she told the court that unofficial churches were not allowed. She said that she attended an unofficial church which was illegal in China. Before she had attended unofficial churches, she did attend a normal or official church, but she claimed that those so-called official churches were, in fact, maintained by the government and that their focus was not to God.

4. The applicant then went on to tell the Court an edited version of the events that occurred, which she said took place on 28 June, when the police arrived at her home and apprehended her and her husband.

5. For the Minister it was submitted that this was a matter where the Tribunal had rejected the application on the basis of the applicant’s credibility, and that the findings about credibility were open to the Tribunal on the evidence before it. It was also submitted that there was no evidence of any procedural unfairness on the part of the Tribunal. It was also submitted on behalf of the Minister that the Minister did not accept the findings of the Federal Magistrates Court in the decision of SZNAV and Ors v Minister for Immigration and Anor,[18] and would seek to distinguish that matter on the facts. The applicant was asked if she wished to make any submission in reply, and she indicated that she was suffering from a bad headache and she had no more to say.

   [18] [2009] FMCA 693 (“SZNAV”).

Considerations

1. In dealing with the application for review of the decision of the Tribunal, what the Court must do is consider whether the decision was affected by jurisdictional error. The Tribunal decision, as was explained during the proceedings, can only be set aside on judicial review if it involves jurisdictional error.[19]

   [19] See Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

2. As to the claim that the Tribunal considered the case unfairly, I am satisfied that the Tribunal did consider all of the applicant’s claims. The applicant had submitted that the finding was unfair because the Tribunal disbelieved her claims at the hearing. However, it is well established that disagreement with findings of fact made by a tribunal does not support a contention that the Tribunal failed to consider the evidence properly or fairly.[20]

   [20] SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 at para.14 per Jacobson J.

3. As to procedural fairness, it is well established by s.422B that Division 4 of Part 7 of the Migration Act 1958 (Cth)[21] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule, thus common law principles of natural justice will not, therefore, be regarded as going towards jurisdictional error.[22]

   [21] “Migration Act”.

   [22] See Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214.

4. What the Court must do is look at the requirements in Division 4 of Part 7 of the Migration Act to see whether in fact the Tribunal has complied with them. It is noteworthy that in the decision of SZNAV, it was found that the Tribunal’s acknowledgement of application letter not only was a request for additional information under s.424 of the Migration Act, but was therefore a letter to which the provisions of subsection 424B(2) apply. The letter in that case was set out in full by his Honour in SZNAV at para.20 of the decision. The offending wording, if I may use that phrase, appears in the Tribunal’s acknowledgement letter, set out in the decision under the heading “What Does the Tribunal Expect Me to Do?” There are three bullet points set out, the third one of which says:

   Immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.

5. It was that particular wording that attracted the adverse tension of the court in SZNAV. His Honour found at [32]:

   It follows from the above that I am of the view that the appropriate description of the acknowledgement letter is that it is a letter written pursuant to s.424 to which the provisions of s.424B(2) apply and that by requiring the information “immediately” the writer did not require it to be given within the prescribed period. This caused a breach of s.424B(2). The question I must now consider is whether such a breach constituted a jurisdictional error.

6. His Honour went on to find at [44] that it did constitute jurisdictional error. In the case before this Court, however, the acknowledgement letter from the Tribunal contains somewhat different wording. It was sent out on 23 February 2009. In the advice to the applicant as to what the applicant should do the Tribunal’s letter said:

   It is important that you:

   ·    tell the Tribunal immediately if you change your contact details (such as your home address, your mailing address, your telephone number, your fax number or your email address);

   ·    tell us immediately if your personal circumstances change and this is relevant to the review of the decision;

   ·    use your RRT case number…when you contact us.

   If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.[23]

   [23] See Court Book at page 70.

7. It can be seen that the wording of that letter, which I understand was amended by the Tribunal early in February 2009, differs significantly from the wording of the letter set out in SZNAV. It is more in line with the wording of the letter referred to by the Full Court of the Federal Court in MZXRE v Minister for Immigration and Citizenship,[24] where their Honours North and Rares JJ held, at [8]:

   It is common ground that this letter did not amount to an invitation to the appellant to give additional information within the meaning of s.424(2) of the Act. This was because it had not specified a date, in accordance with s.424C(1)(b), before which any information had to be provided.

   [24] [2009] FCAFC 82 (“MZXRE”).

8. I am of the view that the letter in the decision currently under review can be distinguished on the facts from the letter set out in SZNAV and, as such, my view is that SZNAV does not apply to the matter before this Court. In my view there was no breach of ss.424 or 424B of the Migration Act.

9. The Court must look at whether there is a breach of s.424A of the Migration Act. Clearly, there was no letter written under the provisions of subsection 424A(1) to the applicant, but there was no need for there to be. The Tribunal made its decision based on information provided by the applicant for the purpose of the application for a protection visa, information given by the applicant to the Tribunal for the purpose of the review, and independent country information. All of these matters are specifically excluded from subsection 424A(1) by subsection 424A(3) of the Migration Act. There is no breach of s.424A of the Migration Act.

10. The Court must also consider the operation of s.425 of the Migration Act. The Tribunal wrote to the applicant and invited her to attend a hearing, as required by s.425. That hearing invitation, in my view, complied with the requirements of section 425A of the Act. It set out the time, date and place of the hearing. It gave the applicant more than the specified amount of notice. It advised the applicant about the requirements to attend the hearing and the consequences of failing to attend a scheduled hearing, in that the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it, under the provisions of s.426A of the Migration Act. The hearing invitation did not breach s.425A and a hearing was conducted under the provisions of s.425.

11. Now, it can be that a hearing can miscarry in certain ways. It is not unknown for a failure by an interpreter to interpret the proceedings to be of such significance that the applicant does not receive a fair hearing under s.425. That is not the case here. The Tribunal provided the applicant with an interpreter of her chosen language, and the applicant gave evidence, and there is no complaint made about any interpreting failure. The Tribunal decision was made, basically, because of a rejection of the applicant’s claim on credibility grounds. This was the issue in the decision of the delegate.

12. The delegate was not satisfied as to the applicant’s claim on credibility grounds. Thus, the applicant was, or should have been, aware of the issues that would be discussed at the Tribunal hearing, and was not placed in a position where she did not receive a fair hearing in the circumstances referred to by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[25] There is, in my view, no breach of any of the sections going to procedural fairness in Division 4 of Part 7 of the Migration Act.

    [25] (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).

13. I should comment that in the applicant’s second ground in her application, where she complained that the Tribunal considered her case unfairly, she did go on to say: “They doubt my claim without substantive evidence”. It is well established that it is for an applicant to provide evidence to show that he or she meets the requirement for a visa. It is not the case that the Tribunal must produce evidence to disprove an applicant’s claim. In my view, the applicant’s grounds of review set out in her application filed on 18 June 2009 have not been made out.

Conclusion

1. I am mindful of the fact that the applicant is not legally represented in these proceedings. The Court, in such circumstances, will consider the Tribunal decision and supporting documents in case there is an arguable case for jurisdictional error. I am unable to discern any. What this gets down to is that the reason why the Tribunal did not grant the applicant’s claim was because the Tribunal was not satisfied about the applicant’s credibility.

2. It is well established that a finding on credibility is the function of the primary decision maker par excellence. This has specifically been set out by McHugh J in the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham.[26] It follows therefore, that, as no jurisdictional error has been made out, the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. Privative clause decisions are final and conclusive. They are not subject to orders in the nature of certiorari, mandamus or prohibition, and it follows therefore that, as the decision is a privative clause decision, the application will be dismissed with costs.

   [26] (2000) 168 ALR 407 at 423; [2000] HCA 1 at para.67.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Deputy Associate:  Susan Dinon

Date:  18 August 2009

[17] See Transcript at page 11.