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[2006] FCA 1645
Federal Court of Australia
2006-11-28
Greenwood J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 In this appeal, the Appellant contends that Federal Magistrate Nicholls erred in dismissing (SZEPI v Minister for Immigration & Multicultural Indigenous Affairs & Anor [2006] FMCA 153) on 23 February 2006 an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') delivered on 21 September 2004 affirming a decision of the Minister's delegate refusing the Appellant's application for a protection visa. 2 The Appellant relies upon three grounds. Firstly, a contention that 'the judgment of Federal Magistrate Nicholls is absolutely incorrect'. Secondly, that Federal Magistrate Nicholls erred in failing to find an error of law on the part of the Tribunal constituting a jurisdictional error and a failure to find a procedural error in the Tribunal's decision constituting an absence of natural justice. Neither of the two limbs of this second ground are particularised. Thirdly, that Federal Magistrate Nicholls erred in failing to find that the Tribunal had failed to comply with its obligations pursuant to ss 424A(1) and 425 of the Migration Act 1958 (Cth) ('the Act'). 3 In the course of the hearing, the Appellant articulated two further grounds of error, namely, a failure on the part of the Federal Magistrate to find that the Tribunal failed to reach a 'fair decision' and secondly, a failure on the part of the Federal Magistrate to find that the Tribunal was biased. As to these further grounds, the contention is that the Tribunal failed to properly consider the Appellant's claim that if he returned to the People's Republic of China ('PRC') he would be arrested and thus the Tribunal failed to properly consider the Appellant's claims of a well‑founded fear of persecution for a Convention reason. 4 As to the bias ground, the Appellant contends that the presiding Tribunal member was biased because the member failed to consider important factual elements making up the claim of a well‑founded fear of persecution, failed to consider the serious consequences for the Appellant of returning to the PRC and failed to consider the factual content of the Appellant's claim of engagement in and provision of funding for an 'anti‑Government party' designed to resist the Chinese Communist Party and thus provide the foundation for an emergent multi‑party democratic political framework within at least a part of the PRC. 5 A further contended element of either bias on the part of the Tribunal or a failure of the Tribunal to make a fair decision, is said by the Appellant to be procedural confusion on the part of the Tribunal in failing to maintain a separate and discrete record of the Appellant's papers and documents evidenced by the provision to the Appellant of documents relating to his own application before the Tribunal mixed with documents relating to another claimant's application. 6 In reply to these matters, the First Respondent says this. 7 As to the contention of errors of law constituting jurisdictional error and procedural errors constituting a denial of natural justice, both allegations are unparticularised and therefore reflect no underlying content. As to the question of bias, there is nothing on the face of the Tribunal's decision to suggest actual bias nor any ground of apprehended bias. As to the question of the consideration by the Tribunal of the factual content of the claims made by the Appellant, the First Respondent says the Tribunal considered each of the claims made by the Appellant in support of the application for a protection visa and all material and evidence provided to the Tribunal by the Appellant for consideration in the review of the delegate's decision. 8 As to the question of confusion in relation to the documents, the First Respondent acknowledges that there was a mixing of documents as contended. That matter is addressed by Federal Magistrate Nicholls in his decision. Importantly, the mixing of documents occurred after the Tribunal reached its decision and therefore did not affect the Tribunal's consideration of the issues or its reasoning in reaching a decision to affirm the decision of the Minister's delegate. 9 As to the contention that the Tribunal failed to comply with obligations cast upon it pursuant to ss 424A(1) and 425 of the Act, the First Respondent concedes that these grounds raise matters of substance but says that ultimately the Tribunal discharged all its obligations arising under those sections of the Act. The essence of the Appellant's contention is that in reaching its decision, the Tribunal had regard to inconsistencies between the oral evidence provided by the Appellant to the Tribunal and statements made by him in his application documentation for a protection visa submitted to the Department; that these inconsistencies proved to be a part of the reason for the Tribunal affirming the decision under review; and the Tribunal failed to give the Appellant particulars of the inconsistencies thus giving rise to a failure by the Tribunal to provide 'particulars of information' to the Appellant as required by s 424A(1)(a). 10 The First Respondent contends that by force of the Appellant's letter to the Tribunal dated 12 March 2004, the Appellant republished to the Tribunal the content of the claims made to the Department contained in documentation lodged with the Department in support of the protection visa application and thus the Tribunal was entitled to have regard to statements made in that documentation and contrast and compare those statements with the Appellant's oral evidence; without the necessity of giving the Appellant particulars of the inconsistencies; without ensuring the Appellant understood why the inconsistencies were relevant to the Tribunal review; and without inviting the Appellant to comment on the inconsistencies. 11 In other words, the obligations arising under s 424A(1) of the Act had no application by reason of s 424A(3)(b) of the Act to information contained in the Appellant's protection visa application for the purposes of the review before the Tribunal because the Appellant elected to invite the Tribunal to consider that information and all statements, facts and contentions put by the Appellant to the First Respondent in connection with the Appellant's protection visa application. 12 The First Respondent says that since the Appellant 'republished' the relevant information to the Tribunal for the purposes of the application before the Tribunal, the Tribunal acted in a way entirely consistent with the principles identified in the following decisions of the Full Court of the Federal Court; Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; and the principles identified by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; and notions of 'republication', discussed in the following decisions of the Federal Court; SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034; and SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611.
The Background Facts 13 The Appellant was born in the PRC and is a citizen and national of China. 14 The Appellant arrived in Australia on 7 December 2003. 15 On 7 January 2004, the Appellant lodged an application with the First Respondent for a protection visa. In support of that application, the Appellant lodged a statutory declaration made on 6 January 2004 setting out the factual foundation for the Appellant's claim of a well‑founded fear of persecution should he return to the PRC. On 6 February 2004, the First Respondent wrote to the Appellant advising that his application had been refused. That letter attached a copy of the decision record setting out the Respondent's reasons for rejecting the Appellant's application. 16 On 15 March 2004, the Appellant lodged an application for review of that decision with the Tribunal. The Appellant lodged with that application a five page letter signed and dated 12 March 2004. In that letter, the Appellant said: 'I have carefully considered the decision given by a Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse my application for a Protection visa; and I do not accept the refusal decision mainly based on the reasons as follows: · I believe to be a person to whom Australia has protection obligations under the United Nations Refugee's Convention as amended by the Refugee Protocol; · I do not think that the Delegate has considered all of my claims fairly and carefully.' [emphasis added] 17 In addition, the Appellant said this: 'The Delegate of minister was not satisfied about the credibility of my claims mainly for the reasons as follows: · a citizen of China exits the PRC lawfully provides a strong foundation for confidence that they are not of adverse interest to the Chinese authorities; · it is not plausible to escape persecution for a period of several months when I was allegedly being targeted by the Chinese government; and · I have returned to the PRC voluntarily.' 18 Having made those observations, the Appellant then immediately set out the conclusion (and criticism) he sought to draw, in these terms: 'Obviously, the decision-maker has never ever carefully considered my claims, and he has never ever understood my circumstance correctly.' [emphasis added] 19 The Appellant then at pages 3, 4 and 5 of his letter of 12 March 2004, set out the content of his claims. 20 The material put to the Department in the statutory declaration asserted these things. 21 The Appellant contended that he would be subjected to persecution by the Chinese Government upon his return to the PRC due to his political opinions and his historical political activity in the PRC. Before the Appellant came to Australia, he worked as a public official at the Price Administration Bureau of Suzhou City, Jiangsu Province in the PRC. In that role, the Appellant observed extensive corruption throughout the administration of the Chinese Government and formed a view that although it would be impossible to completely eradicate the influences of corruption, the development of a multi‑party political system with at least one strong independent and influential opposition would significantly constrain public corruption. 22 From January 2003, a large anti‑corruption movement began to take shape throughout parts of China. The Appellant was not reluctant to articulate his political opinions concerning the need for a multi‑party political environment. By May 2003, the Appellant's participation in political study classes came to the attention of the Government as did his views articulated in these study classes emphasising the notion that 'it would be definitely impossible to completely destroy or even to successfully reduce corruption without a multi party democratic political system'. 23 The Appellant says that from June to July 2003 he was subjected to investigation for nearly two months with the authority of the Price Administration Bureau of Suzhou City, by the Public Security Bureau ('PSB') and by the National Security Bureau ('NSB'). 24 From that period, the Appellant experienced 'huge mental pressure' and although he was still able to work as a public official, he was 'always warned or threatened by those communist leaders'. 25 From August 2003, the Appellant together with a number of like‑minded individuals, organised a formal political organisation which became the vehicle for disseminating these political opinions in the Suzhou area through publications, hand bills and leaflets edited by the Appellant and, in particular, four committed individuals, namely, a teacher from Suzhou University, a public official of the Suzhou Industrial and Commercial Administration Bureau ('SICAB'), a staff member of the Suzhou Post Office, and a public official from the Suzhou Education Bureau ('SEB'). 26 The Appellant came to Australia and New Zealand for a short visit in October 2003 and returned to the PRC shortly thereafter. In November 2003, the Appellant attended a further political 'class' and further articulated his views about the need for a multi‑party political system within the PRC. However, one of the Appellant's colleagues who also held these views, the teacher from Suzhou University, was arrested by the PSB. 27 On 7 December 2003, the Appellant arrived in Australia. 28 The Appellant's remaining colleagues, the public official from the SICAB, the staff member of the Suzhou Post Office and the public official from the SEB were arrested between 16 December 2003 and 24 December 2003. As a result, the Appellant contended that he would be subjected to persecution upon his return to the PRC because the formal political organisation formed by the Appellant and his like‑minded colleagues had been classified as an anti‑Government organisation and the political opinions articulated by the Appellant would no longer be tolerated. 29 In addition to these matters, the Appellant completed application documentation in which he set out details of his educational background. The Appellant said that he attended Central Primary School of Suzhou City between September 1968 and June 1973; that from September 1973 to June 1979 he attended Suzhou No. 3 Middle School in Suzhou City, Jiangsu Province; and from September 1979 to June 1982 he attended Suzhou University. 30 In the Appellant's letter dated 12 March 2004, the Appellant at pages 3, 4 and 5 of his letter set out his contention that his political views were unacceptable to the PRC authorities; that his colleagues had been arrested; that he came to Australia in October 2003 but returned to actively disseminate his political opinions; that he further articulated his pro‑democracy views throughout November 2003; and that he left China in December 2003 to escape persecution. The Appellant set out in the letter his view of the findings the Tribunal ought to reach based upon his contentions and further set out four grounds for his belief that he would be subjected to persecution should he return to the PRC. 31 On 21 April 2004, the Tribunal wrote to the Appellant advising that it had information that subject to the Appellant's comments would be the reason or part of the reason for deciding that the Appellant was not entitled to a protection visa. That information concerned the entry of the Appellant into Australia through the use of a passport relating to another, with the Appellant's details substituted into the document. The Appellant responded to the Tribunal by lodging a statutory declaration in which he conceded that he had entered Australia with the help of a friend, using a false name. The Appellant provided his correct details and explained that he entered Australia using a passport in which his photograph had been substituted for that of the original passport holder as it would not have been possible to obtain a passport in his own name. 32 On 26 July 2004, the Tribunal invited the Appellant to attend a hearing on 23 August 2004. The Appellant attended that hearing and on 21 September 2004 the Tribunal affirmed the decision of the Respondent's Delegate. 33 It is clear from an analysis of the Tribunal's decision that the Tribunal had before it the Respondent's file, the Delegate's decision record, the material referred to in the Delegate's decision and material lodged with the Tribunal in support of the application for review. The Tribunal also had the benefit of the oral evidence of the Appellant. An examination of the Tribunal's decision record reveals a detailed review of the facts and contentions put before the Tribunal concerning the Appellant's engagement in the political process previously described; his commitment to the articulation of the need for a multi‑party system in China; the establishment of the formal political organisation in conjunction with the four individuals previously mentioned and the events leading to the arrest of those individuals. The material recites the contentions on the part of the Appellant as to his belief or fear of persecution should he return to the PRC. 34 There is no basis for concluding that the Tribunal failed to have regard to the facts and contentions put before the Tribunal by the Appellant nor is there any basis for concluding that the Tribunal member was biased or brought a pre‑determined view of the matter to the review. There is no basis for concluding that the decision of the Tribunal was the subject of apprehended bias. A fair minded lay observer objectively examining the analysis of the facts and contentions could not be led to a view that the Tribunal member brought a pre‑determined mind to the application for review. 35 Accordingly, there is no basis for concluding that Federal Magistrate Nicholls erred by failing to find that the Tribunal had failed to properly consider the facts and contentions of the Appellant or erred by failing to find that the decision of the Tribunal was vitiated by bias or apprehended bias. 36 The Tribunal also made these observations: 'Applicant's identity On the basis of the information supplied to the Tribunal by the Department concerning photo‑substitution in the passport used by the Applicant, and the Applicant's statutory declaration of 16 May 2004 … the Tribunal accepts that the Applicant's real name is [SZEPI], that he was born in Fujian Province in 1963 and that he is married. The Tribunal also accepts that the Applicant travelled to Australia on 7 December 2004 on a falsified passport under the name of [ABCD]. This being so, the Tribunal finds that the information provided by the Applicant in his application for protection and application for review is untrue as to his name, date and place of birth and marital status and finds that the Applicant has misrepresented himself in these applications. The Tribunal has considered the relevance of these misrepresentations, and other inconsistencies in the Applicant's claims, for the credibility of his claims to fear persecution in China'. [emphasis added] 37 The Tribunal also made these further observations: Inconsistencies in the Applicant's claims 'The Tribunal's doubts as to the credibility of the Applicant's account are reinforced by further inconsistencies between his written claims in his protection and review applications and his oral evidence. In his primary application, the Applicant claims to have received fourteen years of formal education in Suzhou, culminating in a University degree in 1982. He gives dates and details of his education at primary and secondary schools in Suzhou City and at the University of Suzhou. In his oral evidence, however, he claims to have received only seven or eight years of formal education, all of which was obtained in Fuqing City. In his primary application the Applicant claims to have been employed at the Prince Bureau of Suzhou City from May 1983 to November 2003. He told the Tribunal, however, that he had only worked in this position for a few months, following his move to Suzhou City from Fuqing City in 2003. When these discrepancies were raised with him at the hearing the Applicant claimed that the oral evidence he was giving was the truth. He gave no explanation for the discrepancies beyond the suggestion that there had been a mistake in preparing his primary application. As noted above, the Tribunal does not accept this explanation. There is no independent evidence before the Tribunal to support either version of the claims and the Tribunal is unable to be satisfied as to which version may be true. Given that one version, at least, must be untrue the Tribunal finds that the discrepancies cast further doubt on the credibility of the Applicant's other claims.' [emphasis added] 38 The Tribunal in reaching its summary of the relevant matters observed that the Applicant's misrepresentation of his identity in his written claims for which, in the view of the Tribunal, the Appellant had provided no credible explanation, raised strong doubts on the part of the Tribunal as to the credibility of the Appellant's claims concerning his reasons for a contended well‑founded fear of persecution should he return to the PRC. The Tribunal observed that: 'These doubts are reinforced by inconsistencies in his claims and his failure to provide a credible account of his claimed political activities or the investigations he says they attracted.' [emphasis added] 39 The Tribunal made these findings: 'The Tribunal is not satisfied that the Applicant has ever expressed political opinions in favour of democratic reform in China, as he claims, or that he has ever been investigated because of such expression. Nor is the Tribunal satisfied that the Applicant ever belonged to an opposition political organisation or that he has ever been targeted by the Chinese authorities for this or any other reason, or that he will be arrested if he returns to China. It follows that, on the basis of the Applicant's claims, the Tribunal is not satisfied there is a real chance that he would face serious harm amounting to persecution for a Convention reason if he went back to China, now or in the foreseeable future, and is not satisfied that he is a refugee.' 40 The Appellant asserted two grounds of review before Federal Magistrate Nicholls. By the first ground, the Appellant asserted errors of law and procedural errors constituting a denial of natural justice arising out of a contended failure to provide the Appellant with a fair hearing; and secondly, that the Tribunal failed to comply with its obligations under s 424A of the Act. The first ground is in similar terms to the unparticularised grounds contained in the present Notice of Appeal. 41 At the hearing before Federal Magistrate Nicholls, the Appellant complained that the Tribunal was biased and the content of that bias was said to be demonstrated by the Tribunal's reliance in its decision record on the fact that the Appellant had not revealed his true identity. The Appellant complained that the Tribunal based its decision on adverse findings as to his credibility. Federal Magistrate Nicholls addressed those matters comprehensively. The findings on credibility were open to the Tribunal and there is no demonstrated error in the present appeal in his Honour's approach to those matters in failing to find bias or failing to find that the conclusion on the merits was not open to the Tribunal. 42 As to the question of whether the Tribunal failed to discharge obligations arising under s 424A of the Act, his Honour said this. 43 As to the inconsistencies, his Honour observed that the Tribunal found that its doubts as to the credibility of the Applicant's account were reinforced by inconsistencies between the Appellant's written claims in his protection visa application and oral evidence and other evidence provided to the Tribunal [5]. At [6], his Honour observed that: 'The summary of the Tribunal's analysis clearly shows that the applicant's misrepresentation of his identity after he arrived in Australia, for which he provided no credible explanation, raised strong doubts as to the credibility of his claims concerning his reasons for fearing persecution in China, and that these doubts were reinforced by inconsistencies in his claims, and his failure to provide a credible account of his claimed political activities.' 44 At [19], his Honour observed that the Appellant claimed that the Tribunal had failed to comply with its obligations pursuant to s 424A of the Act in failing to provide him with complete independent country information used in the Tribunal's reasoning; failed to explain to the Appellant the information so used; failed to ensure that the Appellant understood that information; and failed to provide the Appellant with information by one of the methods specified in s 441A of the Act. 45 As to the reliance by the Tribunal upon information forming a part of the reason for the decision to affirm the decision of the Respondent's Delegate, his Honour observed at [20] that the Tribunal's decision record suggested that three classes of information might be subject to the operation of s 424A(1), namely, independent country information relied upon by the Tribunal; information referred to by the Tribunal in making its findings in relation to the Appellant's identity and his misrepresentation of his true identity after arrival in Australia; and information drawn from the Appellant's application for a protection visa relied upon for the purpose of demonstrating inconsistencies between the Appellant's oral evidence before the Tribunal and prior written statements on the same subject matter. 46 As to the first class of information, his Honour correctly observed that it is not apparent that the Tribunal relied upon any independent country information other than that set out in the Tribunal's letter dated 21 April 2004 sent to the Appellant pursuant to s 424A of the Act [21]. Further, his Honour correctly observed that the Tribunal in reaching its conclusion that the Appellant misrepresented his true identity, relied upon information the subject of the Tribunal's letter dated 21 April 2004 to which the Appellant replied by submitting a declaration to the Tribunal dated 16 May 2004 as to the relevant matters [22]. 47 As to the third category of information, his Honour noted that the Tribunal relied upon information contained in the Appellant's protection visa application in which the Appellant set out details of his educational background and experience to the effect that the Appellant had received 14 years of formal education in Suzhou City culminating in a University degree in 1982 and details of his employment history to the effect that the Appellant had been employed at the Price Bureau of Suzhou City from May 1983 to November 2003. In giving oral evidence, the Appellant said that he had received only seven or eight years of formal education; this education did not occur in Suzhou City; and as to his employment history, the Appellant gave evidence that he had worked for the Price Bureau of Suzhou City for a few months. 48 A question might arise as to whether the Tribunal relied upon 'information' given by the Appellant to the Tribunal for the purposes of the review or whether the Tribunal relied upon 'inconsistencies' arising out of an analytical comparison of the Appellant's oral evidence and earlier statements. There may be a relevant distinction between conclusions drawn from an analytical process which form part of the reason for the decision and 'information' relied upon by the Tribunal in applying a proper method of analysis to the underlying facts. However, for present purposes, the issue in this appeal should be approached on the footing that the details contained in the Appellant's protection visa application constituted information which, if relied upon by the Tribunal, enlivened the obligation under s 424A(1) subject to the operation of s 424A(3)(b) which, in turn, gives rise to the question of whether the relevant information was provided by the Appellant to the Tribunal for the purposes of the review by the Tribunal or whether the Tribunal elected to rely upon information provided by the Appellant to the First Respondent for the purposes of enabling the First Respondent or the First Respondent's Delegate to make a decision upon the protection visa application. 49 At [23], his Honour observed that in the circumstances of the present case, there may be a: '… basis of concern in light of the dicta of the Full Federal Court in Al Shamry v Minister for Immigration & Multicultural Affairs … about the meaning of "application" and what constitutes information given to the Tribunal for the purposes of the application before it as opposed to information given in the protection visa application. When seen in the light of the High Court decision in SAAP such information may be required to be put to an applicant, essentially in writing.' 50 In dealing with that issue, his Honour observed that in reliance upon VAF v Minister for Immigration & Multicultural Affairs [2004] FCAFC 123, Stone and Finn JJ determined that when the Tribunal's reasons are evaluated for the purposes of s 424A(1), the Court as a matter of judgment is required to isolate those elements of the Tribunal's decision which are the 'integral parts of the reasons'. His Honour also observed that having isolated the integral parts of the reasons for the Tribunal's decision and determined whether the decision rests upon information forming a part of the reason for affirming the decision, particulars of which, in breach of s 424A(1), were not provided to the Appellant, and also rests on other grounds independent of that contravention and those grounds are not shown to be impeached, the decision of the Tribunal will remain a decision made according to law, having regard to any unimpeached independent ground. His Honour, in reaching this conclusion, relied upon VBAP of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 965; SZDXC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1306; MZWPK v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1256; and VCAD v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 1. 51 His Honour then concluded that the Tribunal's reliance upon inconsistencies between statements contained in the Appellant's protection visa application and his oral evidence could not be considered integral to the Tribunal's decision having regard to the brevity of the reference to the inconsistencies in the context of other key conclusions concerning findings as to the credibility of the Appellant. His Honour observed that the Tribunal had 'already come to a clear finding about the applicant's truthfulness before it looked at the inconsistencies' and that the Tribunal's doubts as to the credibility of the Appellant's account of the historical events was simply 'reinforced' by the inconsistencies. His Honour observed that, 'Clearly the finding of "untruthfulness" and the doubts that this cast on other aspects of the claims were not primarily, or eventually, dependent upon these inconsistencies'. [emphasis added] 52 His Honour also concluded that the obligation contemplated by s 424A(1) did not arise in the circumstances of the present case because the Tribunal rather than adopting a position of acceptance of the information given by the Appellant to the Respondent, adopted a position where it neither accepted nor rejected the information contained in the Appellant's protection visa application but simply noted the inconsistency between the two accounts. His Honour observed at [27], 'It is the discrepancy, that is, the inconsistency itself that casts further doubt on the credibility of the applicant's other claims, and it is not in the sense that the Tribunal has relied on the inconsistency to make a clear finding by preferring one account over the other' [emphasis added]. 53 His Honour also observed that in the present case, the Appellant before the Federal Magistrate did not challenge that part of the Tribunal's decision which shows: 'That the Tribunal specifically asked the applicant at the hearing about the personal data provided in the protection visa application, and the process or means by which it had been provided. The applicant was given the opportunity to address this information and the Tribunal made reference at the hearing before it to the accuracy of the information provided by the applicant in his protection visa application. It also made specific reference to the applicant's personal details, educational achievements, and employment history. In other words, the Tribunal's reference in its "Findings and Reasons" to the inconsistencies in the applicant's claims in this regard were brought to the applicant's attention at the hearing. The applicant was put on notice as to the inconsistencies in the two versions and was given the opportunity to comment. The Tribunal clearly did not prefer one version over the other but focused on the inconsistency.' 54 In reaching this conclusion, his Honour relied upon observations in SZFKL v Minister for Immigration & Indigenous Affairs [2005] FCA 931. 55 His Honour observed that two factors influenced the conclusion that s 424A had no application in the circumstances of the present case. Firstly, the Tribunal had regard to the inconsistencies per se in the two versions of events proffered by the Appellant rather than acting in reliance upon an acceptance of information contained in the Appellant's protection visa application as information forming part of the reason for affirming the decision of the Respondent's Delegate. Secondly, the Appellant gave evidence at a hearing before the Tribunal in the course of which information concerning the Appellant's personal details, educational achievements and employment history was tested. These matters were specifically put to the Appellant. 56 Thus, in his Honour's view, the Appellant provided the relevant information to the Tribunal itself for the purposes of the review of the decision of the Respondent's Delegate. On that footing, the information was given by the Appellant to the Tribunal for the purposes of the application before the Tribunal as contemplated by s 424A(3)(b). 57 The feature of the ground of appeal going to s 424A which is decisive of the appeal is this. 58 By the Appellant's letter to the Tribunal dated 12 March 2004, in the context of the Appellant's application to the Tribunal for a review of the Delegate's decision, the Appellant contended that the Delegate had not considered all of his claims 'fairly and carefully' and that as a result of factual matters set out in the letter, the 'obvious' conclusion open was that, 'the decision‑maker has never ever carefully considered my claims and he has never ever understood my circumstances correctly'. 59 In the context of an application to the Tribunal to undertake the jurisdictional task of reviewing the decision of the Respondent's Delegate, these statements of the Appellant can only be construed as an express request by the Appellant of the Tribunal to gather together before the Tribunal all of the documents and information describing the circumstances, facts and contentions going to the Appellant's claim for a protection visa including all material before the First Respondent's Delegate and to review that material so as to reach a focused, informed and accurate assessment for itself of the strengths and weaknesses of the claim to a well‑founded fear of persecution. Such a request might be described as a republication but its proper character is an express request of the Tribunal to descend into the merits of the claim and to properly have regard to all of the facts, circumstances and contentions which are said by the Appellant to be persuasive of the Appellant's claim of a well‑founded fear of persecution. In determining that question in the exercise of the Tribunal's jurisdiction, the Tribunal must necessarily have regard to all of the information put to the First Respondent by the Appellant in connection with the application for a protection visa. 60 In so doing, the Tribunal acts conformably with the express request of the Appellant. 61 In those circumstances, information that the Tribunal considers to be a part of the reason for affirming the decision by reason of its utility in determining whether there are inconsistencies in the versions given by the Appellant, is information given by the Appellant to the Tribunal for the purposes of s 424A(3)(b) and there is thus no obligation under s 424A(1) to give particulars of that information drawn from the Appellant's protection visa application to the Appellant so as to provide the Appellant with an invitation to comment on it. 62 No contentions have been addressed to the Court in relation to s 425 of the Act. 63 In this case, it is clear that the Tribunal relied upon information drawn from the Appellant's responses to the questions set out in the protection visa application documents. Although an argument might be made that the reasons for decision adopted by the Tribunal reflect a finding open to the Tribunal that it could not be satisfied of the credibility of the claims made by the Appellant and such a finding is independent of any ground which might be the subject of impeachment pursuant to s 424A(1), it seems to me that the Tribunal's reliance upon information contained in the Appellant's protection visa application in order to make an assessment of the weight and reliability to be accorded to the totality of the Appellant's evidence, oral and written, represented an assessment of information relevantly given by the Applicant/Appellant to the Tribunal for the purposes of the application for review. 64 Accordingly, the reasons adopted by the Tribunal in reliance upon inconsistencies arising out of the comparison between the Appellant's oral evidence before the Tribunal and earlier written statements do not reflect a ground of impeachment by reason of s 424A(1). 65 Accordingly, I am not satisfied that his Honour erred in failing to find that the Tribunal had engaged in a breach of s 424A of the Act.
66 As a result, the appeal is to be dismissed with costs. I certify that the preceding sixty‑six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.
Associate: Dated: 28 November 2006 Counsel for the Appellant: Self represented
Solicitor for the Appellant Self represented Appellant
Solicitor for the Respondent: Clayton Utz, Ref: 113/Z Brauer
SZEPI
Minister for Immigration and Multicultural Affairs
[2006] FMCA 153
(2001) 110 FCR 27
(2005) 215 ALR 162