Consideration
15 The Tribunal accepted that the applicant was a citizen of China of the second name. It was not satisfied that her other claims were credible. The Tribunal did not accept that the applicant had been involved in smuggling Bibles to Fujian because it formed the view that, if she had been so involved, she would have been able to remember what happened and provide a similar description of her circumstances throughout the processing of her application. It also rejected her claim to have been involved with the Shouters throughout her life.
16 In disbelieving her claim, the Tribunal referred to inconsistencies in her account at the Tribunal and in her application for a protection visa. In coming to this conclusion, the Tribunal accepted evidence from the applicant's adviser, whom the Tribunal had called to give evidence and whose evidence contradicted that of the applicant. While the inconsistencies and the adviser's evidence were discussed with the applicant at the hearing, they were not provided to the applicant in writing. If the information from the adviser and the information in the application for the protection visa formed part of the reasons for the Tribunal's decision, the Tribunal was obliged by s 424A(1) of the Act to give that information to the applicant in accordance with s 424A(2) and did not do so. That failure would amount to jurisdictional error.
17 Ms Sit's evidence, as recorded by the Tribunal, concerned the fact that she had completed the application for a protection visa on instructions from the applicant. She said that the applicant had instructed her:
· that she lived in Beijing;
· that she visited Fujian frequently; and
· that she smuggled Bibles into Fujian.
18 To the extent that the agent's evidence supported the first name, that is not relevant as the Tribunal accepted the applicant's evidence as to the correctness of the second name. The agent also confirmed that the applicant's claim was that she smuggled Bibles into Fujian.
19 Ms Sit's evidence that the applicant had told her that she lived in Beijing was, however, inconsistent with the applicant's evidence that she had not lived in Beijing. In the protection visa application it was stated that she had lived in Beijing, but the applicant denied having lived there. The Tribunal found that the applicant did not present her claims consistently.
20 The claim of smuggling Bibles was rejected because the Tribunal found that the applicant could not recall and repeat those claims consistently 'throughout the processing of her application'. The Tribunal also referred to the fact that the applicant introduced a claim at the hearing about her sister having been imprisoned which she had not raised before. The Tribunal found that the applicant had fabricated claims at the hearing.
21 It is strongly arguable that Ms Sit's evidence and the information in the protection visa application formed part of the reasons of the Tribunal in its rejection of the applicant's claims because it rejected her credibility. If so, there was a failure on the part of the Tribunal to comply with s 424A(1) in respect of that information, such information not having been put to the applicant in writing. The fact that the evidence was given in the applicant's presence and that she was given the opportunity to comment on it and on the inconsistencies with her evidence to the Tribunal does not avoid the obligation to comply with s 424A(1) and (2) (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [110]).
22 The applicant called evidence from the Elder, in a letter with her application to the Tribunal and at the hearing. That evidence was accepted by the Tribunal and contradicted that of the applicant. The Tribunal concluded that the applicant was not a committed member of Shouters at the time she departed China and that she had not been a committed member during her stay in Australia. The information given to the Tribunal by the Elder was not provided to the applicant in writing.
23 The applicant presented evidence from the Elder with respect to the specific issue of her attendance at church in Sydney (cf M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [97]; SZECG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 733 at [22]). Unlike the evidence of the adviser, it was not evidence called by the Tribunal as part of its inquisitorial function (cf SAAP).
24 In M164/2002 the Tribunal 'received information from the appellant's husband in the course of the hearing' (at [97]). Justice Lee concluded that, if the Tribunal relied on alleged inconsistencies between that evidence and the evidence of the appellant, it was bound to set out in writing the perceived inconsistency between the information obtained at the hearing and the details provided by the appellant in her oral account and in the written accounts attached to the application for a visa, by reason of s 424A of the Act (at [99]). Justice Tamberlin agreed with the reasons of Lee J but did not comment further on this aspect. It is not clear to me that Lee J was saying that, where an applicant calls a witness to give oral evidence on her behalf, that is information outside the scope of s 424A(3)(b) any more than is a letter from a third person submitted by an applicant to the Tribunal in support of her application to the Tribunal. Justice Dowsett, who was in dissent, described at [186] what occurred as '[b]oth the appellant and her husband appear to have accepted that each was a relevant witness in establishing that case'. His Honour contrasted what occurred with information given "in evidence" by an applicant, to include all information put before the Tribunal by the applicant. An example of the latter was giving information to the Tribunal by calling a witness. Accordingly, I do not take Lee J as finding that evidence of a witness called by an applicant needs to be provided in writing to an applicant by reason of s 424A(1) of the Act. That information is evidence given by the applicant to the Tribunal within s 424A(3)(b) of the Act.
25 In VQAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1541Heerey J considered the consequences of a very long delay. In that case, the delay was three and a half years and the explanation was detailed but his Honour did not consider that a satisfactory explanation had been proffered. In discussing the consequences of that delay, his Honour referred to Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 where McHugh J observed at [16]:
'Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay.'
26 I do not accept that the fact that the Federal Magistrates Court did not advise the applicant of her right to appeal is such conduct. There is no suggestion that any conduct on the part of the Federal Magistrate or the Federal Magistrates Court imported such an obligation. However, the applicant's evidence is that she did not know of her right to appeal the Federal Magistrate's judgment. She was not cross-examined. That evidence remains unchallenged and provides an explanation, albeit not a sufficient explanation, for the delay.
27 In VQAN,Heerey J concluded that even where there is no satisfactory explanation, the prospects of success of the appeal are relevant to the decision to grant an extension of time. His Honour noted that McHugh J had said in Marks at [13], with reference to his earlier judgment in Gallo v Dawson (1990) 93 ALR 479, that '[a] "case would need to be exceptional" before the time for commencing proceedings was enlarged by many months'.
28 The Tribunal concluded that the applicant had fabricated claims at the hearing. That finding was in part based on the fact that the applicant did not present her claims consistently 'throughout the processing of her application' with reference to information in her protection visa application and the evidence given by Ms Sit, which the Tribunal accepted. That finding was an important part of the Tribunal's reasons for affirming the decision of the Delegate.
29 The Tribunal was not satisfied that the applicant was a committed member of Shouters. That finding, to the extent that it was based on the evidence of the Elder, was untainted by any failure to comply with s 424A. However, that finding could have been affected by the finding on credibility.
30 The length of the delay of more than 2 years is clearly excessive. However, there is a strongly arguable case on appeal. The decision of the Tribunal, based on lack of credibility, was founded in part on inconsistencies between the claims made in the protection visa application and the evidence at the Tribunal hearing. The information in the application for a protection visa was obviously relevant to that issue, as was the evidence given by Ms Sit. It is clearly arguable that that information had to be provided to the applicant in accordance with s 424A of the Act and that the Tribunal's failure to provide such information constituted jurisdictional error.
31 The strong prospects of success on appeal render this case exceptional and the applicant was unaware of her rights of appeal.
32 The applicant did not raise s 424A of the Act as a ground of review before the Federal Magistrate. It is unlikely that Ms Sit, the applicant's migration agent, would have advised her of that provision of the Act where the Tribunal decision the subject of the application to his Honour was affected by Ms Sit's evidence. Ms Sit was barred by a decision of the Migration Agents Registration Authority on 10 October 2005. In the unusual circumstances of this case, the fact that the ground of review was not raised before the Federal Magistrate should not bar the applicant from relying on it now.