CNI20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1219
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CNI20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1219
File number(s): SYG 1357 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 18 November 2024 Catchwords: MIGRATION –application for judicial review – protection visa – review of a decision of the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal failed to engage with substantial submissions and evidence - whether the Tribunal referred to irrelevant evidence – whether the Tribunal afforded procedural fairness by conducting a hearing by way of telephone – jurisdictional error established Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 19D
Migration Act 1958 (Cth) ss 425, 429A, 499
Cases cited: BTF15 v Minister Immigration and Border Protection [2016] FCA 647
Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 259; [2010] FCAFC 108
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82; [2014] FCAFC 156 at [177]
Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; [2014] FCAFC 93
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 24 October 2024 Place: Sydney Counsel for the Applicant: Ms N Maddocks Instructing solicitor for the Applicant: Ms J Wang, LMP Immigration Lawyers Counsel for the First Respondent: Mr T Reilly Instructing solicitor for the First Respondent: Ms J Schultz, Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1357 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CNI20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the second respondent quashing its decision dated 11 May 2020.
2.A writ of mandamus be issued directed to the Administrative Review Tribunal (the successor body to the second respondent) requiring it to determine the applicants' application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MCCABE:
Ms CNI20 is a Chinese national. She says she was being harassed by police in China because she practised Falun Gong. She claimed she was subject to arbitrary arrest and lengthy periods of detention because of her adherence to the teachings and practices of Falun Gong. She came to Australia in 2015 on a visitor visa and applied promptly for a protection visa. A delegate (delegate) of the first respondent (minister) was not persuaded that Ms CNI20 was owed protection obligations. The application for a visa was refused. Ms CNI20 asked the Administrative Appeals Tribunal (Tribunal) to review that decision, but she was unsuccessful. She has now come to this Court seeking judicial review of the Tribunal's decision.
There were several noteworthy features of the Tribunal's hearing and decision that have become an issue on appeal. The hearing was conducted on 26 March 2020. Restrictions on face-to-face hearings had recently and hurriedly been introduced in the Tribunal to deal with the COVID-19 pandemic. The Tribunal decided to convert the face-to-face hearing into a telephone hearing. Ms CNI20 says the Tribunal's resort to a telephone hearing raised procedural fairness concerns because the Tribunal's decision ultimately turned on an assessment of the applicant's credit. She says it was inappropriate for the Tribunal to proceed with a telephone hearing in those circumstances. Ms CNI20 was also critical of several of the Tribunal's findings and the way they were made. She says those findings cannot provide a proper basis for the Tribunal's assessment of credit, so that the ultimate conclusion - which turns on the adverse finding of credit - is legally unreasonable.
While I am not satisfied there is any substance to several of the grounds of appeal, I am satisfied the applicant has established jurisdictional error in circumstances where there were problems with the Tribunal's findings of fact in at least two respects. While factual errors are not inevitably jurisdictional errors in and of themselves, the concern here is that the Tribunal relied on these two findings as part of the foundation for its conclusion the applicant was not a credible witness. The credibility finding was fatal to the applicant's case because her application depended on her own evidence to make out a claim that she was owed protection obligations. In those circumstances, I am satisfied the Tribunal's decision is unreasonable in the sense that it lacked a logical and probative foundation. The Tribunal also referred to irrelevant material and failed to engage with substantial submissions and evidence. I explain my reasons for this conclusion below.
The history of the application
Ms CNI20 formerly owned a business in provincial China. She recalled experiencing some health challenges and took up the practice of Falun Gong in 1997 at the suggestion of a customer. She said the Falun Gong exercises helped improve her health (court book at p 43). She said she was provided with a book containing the writings of the founder of Falun Gong that she read (court book at p 43). In 1999, the customer told Ms CNI20 that she needed to be circumspect about her involvement with Falun Gong because the authorities had come to disapprove of the organisation and its adherents. Ms CNI20 she said she was visited by police shortly afterwards and taken to a police station for questioning about her involvement with Falun Gong. She said she told the police that she did practice Falun Gong. She was thereafter detained.
There was some controversy about the precise length of time Ms CNI20 was detained and the basis of her detention. The delegate understood Ms CNI20 was detained in a local city gaol in 1999 for one year and nine months, and thereafter in a female prison until she was released in September 2004. Ms CNI20 told the delegate she was detained again for three months in 2008. She was detained yet again for a month in each of 2010, 2012 and 2013.
At the hearing before the Tribunal, Ms CNI20 claimed her detention in 1999 occurred in connection with a prosecution. She said she was charged with disturbing the social order on account of her involvement with Falun Gong. She claimed at the hearing she was sentenced to a term of imprisonment. The Tribunal noted that was the first time Ms CNI20 had mentioned to Australian authorities that she had been detained pursuant to a judicial process.
After being detained in 2008, Ms CNI20 said she made plans to flee China. That took time to organise. She was unable to obtain a useable passport through a family connection until late 2013. After paying bribes, she was supposedly informed she could safely leave the country in May 2015. She left without incident and arrived in Australia shortly afterwards on a visitor visa. She promptly applied for the protection visa.
Ms CNI20 did not persist with her commitment to Falun Gong for long after she arrived in Australia. She said she no longer derived the same health benefits from Falun Gong practices that she had experienced at the start. She says she had long since lost the Falun Gong book she was given around 1997: as I understand her case, the book had been confiscated by the authorities in 1999 when she was first taken into custody. She said she nonetheless had a continuing fear of persecution if she returned to China on account of her historical involvement with Falun Gong.
A migration agent assisted Ms CNI20 to prepare her application for a protection visa. She was invited to participate in an interview with the delegate but I understand the applicant did not attend. The delegate made a decision without further reference to the applicant. Ms CNI20 was told the delegate was not satisfied Australia owed her any protection obligations.
The delegate's decision was communicated to the Ms CNI20 under cover of a letter dated 2 November 2016. She filed an application for review in the Tribunal shortly thereafter. The Tribunal wrote to her migration agent in August 2019 to enquire about Ms CNI20's availability for a hearing in advance of the matter being allocated to a Tribunal member. On 28 February 2020, the member assigned to the file caused the Tribunal to issue a formal invitation to attend a hearing in person. The hearing invitation (reproduced in the court book at pp 99ff) noted:
We have considered the material before us but we are unable to make a favourable decision on this information alone.
You are invited to appear before the Administrative Appeals Tribunal…to give evidence and present arguments relating to the issues arising in your case.
An 'in person' hearing was listed for 26 March 2020 at the Tribunal's Sydney registry. Ms CNI20, through her agent, was also invited to provide any written submission by 19 March 2020 (court book at p 97).
On 20 March 2020, the Tribunal wrote to Ms CNI20 to inform her of changes to hearing arrangements necessitated by the onset of the COVID-19 pandemic. The correspondence advised the Tribunal "is not holding face to face hearings from Monday 23 March 2020". The letter went on to say:
The impact on your matter has been considered by the Presiding Member, who has decided that a telephone hearing is suitable in your case.
The letter then invited the applicant to:
Confirm your attendance by telephone in the attached hearing response or, if you cannot attend by telephone or if you will have difficulty in communication with us by telephone, tell us why.
The letter added:
The Presiding Member will consider any submissions you may make about why it is not suitable for your hearing to proceed by telephone and you will be advised of the outcome of that consideration before the hearing.
I note the hearing response form referred to in the correspondence (reproduced in the court book at pp 116ff) is a generic document that does not ask for comment about the format of the hearing or provide any space for such a comment. In any event, neither Ms CNI20 nor her agent indicated they had any concerns about proceeding on the telephone - although I note the agent indicated he would not be attending the hearing.
A transcript of the hearing was included in an affidavit filed on behalf of the applicant on 4 June 2020 (exhibit 2). The transcript confirms the (by then unrepresented) Ms CNI20 did not make any submission about the appropriateness of proceeding on the phone at the outset of the Tribunal's hearing. She gave her evidence through an interpreter who was also on the line. Ms CNI20 did not at any point ask for an adjournment or complain about the quality of the telephone reception (although I note the interpreter appeared to experience some challenges at various points through the call such that it was necessary for the member to repeat himself on occasions).
The Tribunal did not invite any submissions about the appropriateness of a telephone hearing, nor did it explain why it chose to proceed in that format instead of conducting the hearing using Microsoft Teams which included a video-link. In fairness, at that early stage of the pandemic, the use of Microsoft Teams was not as well established as it became shortly thereafter, and there is no guarantee that Ms CNI20 could access Teams in any event. The Tribunal, having decided to proceed by telephone, appeared set on that course in the absence of active objection from the applicant.
The transcript reveals much of the hearing was comprised of an exchange between the presiding member and the applicant about different aspects of the evidence. The member asked a combination of open questions and closed questions directed to Ms CNI20's understanding of the practices of Falun Gong. The member also focused on what he suggested were discrepancies between Ms CNI20's account and:
·some of the information she had earlier provided in support of her application; and
·the Department of Foreign Affairs and Trade Information Report - China dated 21 December 2017.
The member was obliged to take into account the assessment contained in so-called 'country information reports' where relevant: see Ministerial Direction No 84 'Consideration of Protection Visa Applications' (Direction No 84). Direction No 84 was made pursuant to s 499 of the Migration Act 1958(Cth) (Act). The report the member referred to in the reasons for decision was current at the time of the hearing although there was an earlier country information report dated 3 March 2015 which was current when Ms CNI20 departed China. I will have more to say about the potential significance of the Tribunal's reliance on the subsequent report below.
The Tribunal's reasons for rejecting Ms CNI20's evidence - evidence that was central to her application - were summarised in paragraphs [44]-[45] of its reasons for decision. The Tribunal does not merely find it is unpersuaded by the evidence. It makes a positive finding that the applicant fabricated her claim. The Tribunal said:
44. Ultimately, the Tribunal is not persuaded that the applicant is a credible witness regarding her claimed past practice of Falun Gong, the claimed harm she has experienced in China because of this claimed practice, that she left China and has not returned there because of her claimed identification as a Falun Gong practitioner or that she relocated and went into hiding in China to avoid harm. The inconsistencies between the applicant's written statement and her oral evidence are significant. Further, the applicant's shifting in her oral evidence when confronted with concerns by the Tribunal demonstrate that the applicant is not a credible witness, and was attempting to tailor her evidence to address any deficiencies highlighted by the Tribunal.
45. It is reasonable to expect that the applicant would provide consistent evidence as she is the person who is recalling her lived experiences. The Tribunal is satisfied that the concerns it has regarding her evidence can be attributed to the fact that the applicant learned a story and forget aspects of it, or invented details to fill gaps in her oral evidence. The Tribunal is satisfied that the applicant fabricated her claims for protection as a means to achieve a migration outcome that would allow her to remain in Australia. The applicant is not a witness of truth and the Tribunal rejects her claims in their entirety.
As I have already explained, that credibility finding was effectively fatal to Ms CNI20's application. The Tribunal's decision rejecting that application was dated 11 May 2020.
The grounds of judicial review
Ms CNI20 filed an application for judicial review of the Tribunal's decision on 4 June 2020. She has been waiting since then for the matter to come on for a final hearing. She was capably represented before me at the hearing by experienced counsel. Written submissions provided by each party were directed to the six grounds set out in the further amended application for review.[1]
[1] The minister’s counsel properly consented to leave being given to the applicant to rely on the further amended application at the outset of the hearing, and leave was granted.
The grounds of review are:
(1)The Tribunal engaged in illogical or irrational reasoning in determining whether the Applicant was a genuine Falun Gong practitioner, including for reason that it improperly set itself up as an "arbiter" of religious doctrine. The Tribunal's findings in relation to whether the Applicant was a genuine Falun Gong practitioner were material to its ultimate decision, such that the Tribunal's decision is affected by jurisdictional error.
(2)The Tribunal has committed a material jurisdictional error by failing to consider (or engage in an active intellectual process) with the Applicant's claim that she had difficulty recalling the Falun Gong teachings after the torture she had suffered, in assessing whether the Applicant was a genuine Falun Gong practitioner.
(3)The Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) (the Act) to provide the Applicant with a real and meaningful opportunity to give evidence and present arguments, including for reason that the hearing was conducted by telephone (with the Applicant's evidence given through an interpreter) and the Tribunal made adverse credit findings which resulted in the rejection of the entirety of the Applicant's claims.
(4)The Tribunal unreasonably exercised its discretion under s 429A of the Act to hold the hearing by telephone.
(5)The Tribunal's credibility findings were irrational, illogical or unreasonable.
(6)The Tribunal engaged in illogical or irrational reasoning by relying upon the DFAT Country Information Report on the People's Republic of China dated 21 December 2017 in assessing the Applicant's evidence about how she was able to depart China in May 2015 (at [41] - [43])
I will address each ground of review but I will deal firstly with grounds two and six which I am satisfied have been made out. Each of these grounds refers to illogical or irrational reasoning, a particular species of jurisdictional error.[2] They also raise questions over the Tribunal's use of relevant and irrelevant information.
[2] The High Court recently summarised the concept of jurisdictional error – insofar as a summary is possible – in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12. In that case, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ explained (at [3]):
… Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Ground two
The Tribunal questioned Ms CNI20 at some length about her understanding of the precepts of Falun Gong, and about some of the details of the various exercises which adherents practised. The Tribunal was unimpressed with the extent of her recall and understanding of these matters. The Tribunal noted Ms CNI20 claimed she had access to a book about Falun Gong teachings for at least two years in the late 1990s. It wrote ([24]-[25] of the reasons for decision):
24. In terms of her knowledge of Falun Gong, she told the Tribunal that she was given the Falun Gong book when her customer visited her a second time after their discussion. She told the Tribunal that she obtained her knowledge of Falun Gong through reading the book and undertaking exercises. The applicant told the Tribunal that she no longer has this book as it was gone when she returned to her premises after her first period of detention. Noting that the applicant wrote that she was detained in September 1999, and had been given the book around March 1997, the Tribunal asked the applicant about whether she was able to tell the Tribunal about any of the teachings contained in the book. The applicant told the Tribunal that she covered some of the book before she was detained and told the Tribunal that the book focuses on 'truth, forbearance/compassion and dutifulness'. That was all she could recall from her memory. The Tribunal indicated to the applicant that it found this very broad, and given that she had this book for more than two years, the Tribunal would have thought that she would be able to tell the Tribunal something more about the teachings. The applicant responded that it would be difficult to recall this information after the torture she had suffered. She was able to tell the Tribunal who the author of the book was, and who founded Falun Gong.
25. The Tribunal then asked the applicant about the Falun Gong exercises she was taught. The applicant was able to tell the Tribunal that there were five exercises, but was not able to name them. She told the Tribunal that she used to do the last exercise which required her to sit down cross legged. Given that the applicant told the Tribunal that she used to practice every day for one hour, it was curious to the Tribunal that she used to practice every day for one hour, it was curious to the Tribunal that the applicant would not be able to recall the names of the exercises, or provide any meaningful detail about them, apart from noting that the last exercises was done sitting down cross legged.
[emphasis added]
The Tribunal went on to acknowledge the applicant's poor recall of these matters might be because she has not practised Falun Gong for a significant period of time then observes (at [26]):
… but this does not adequately explain why the applicant was unable to tell the Tribunal any meaningful detail about the teachings of Falun Gong apart from the broad reference of truth, forbearance/compassion and dutifulness. …
The problem with this reasoning is that Ms CNI20 did offer an explanation for her poor recollection: she referred to the after-effects of torture. But the Tribunal did not at any point actively engage with that claim. The Tribunal mentioned the claim at [24], to be sure, but it did not express any view as to what it made of that claim. That is potentially a problem, for the reasons Murphy J explained in Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 at [74]:
In my view engaging in an active intellectual process directed to relevant evidence involves real consideration of it, not merely a recitation of parts of it without consideration of its significance or weight. Lawful decision-making by an administrative decision-maker must be based on the evidence and it requires genuine consideration of the evidence. Care must, however, be taken to ensure that the Court does not stray into merits review.
Mr Reilly, counsel for the minister, argued in oral submissions that I should infer the Tribunal took the evidence of the after-effects of torture into account but did not find the need to expressly address it because of the conclusions it reached about the Tribunal's scepticism of the applicant's credibility elsewhere in the reasons. The difficulty with that submission lies in the fact the Tribunal's scepticism of the applicant's credibility set out in [44]-[45] of its reasons relied on several different criticisms of the applicant's evidence including the poor recall which I have discussed. There is an element of circularity to this reasoning. If her claims about the impact of torture offered a potential explanation for the poor recall of the practices of Falun Gong and perhaps other matters, the failure to deal with that evidence infected the conclusion as to her credit.
While the weighing of evidence is a matter for the Tribunal, the Tribunal's conclusion as to the applicant's credibility must still be supported - particularly when the Tribunal goes so far as to conclude the applicant had actively fabricated her evidence. A damning finding to that effect should only be made where there is evidence pointing to that conclusion: see, generally, Sullivan v Civil Aviation Safety Authority Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [111] per Flick and Perry JJ; see also BTF15 v Minister Immigration and Border Protection [2016] FCA 647 per Katzman J at [56]. If the Tribunal failed to actively engage with a submission as to evidence, or if it did inferentially take account of that submission but engaged in circular reasoning, the conclusion is unreasonable, and therefore a material jurisdictional error: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6] per Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ. If materiality were in doubt, the error is clearly material because the decision turned on questions of credit, and the evidence about the impact of torture was clearly relevant to that assessment. If that evidence had been properly evaluated, it might have answered at least some of the concerns about credit and resulted in a different outcome.
Ground six
Another reason for the Tribunal's scepticism of Ms CNI20's account is found in the portion of the reasons which considers whether the applicant was monitored or sought out by the authorities after 2013 when she was last detained. The Tribunal made a number of observations about apparent inconsistencies in Ms CNI20's evidence before going on to note (at [41]):
41. The applicant was able to depart China, despite being sentenced to a term of imprisonment, subjected to various periods of detention, and had been identified as a Falun Gong practitioner. The Tribunal was curious as to how the applicant was able to depart in light of the fact that Falun Gong practitioners known to the authorities are likely to find it difficult to obtain a passport. Further, the entry and exit procedures in China appear to be comprehensive, meaning that it was unlikely that the applicant would be able to depart China if what she claimed about her past experiences in China was true. The Tribunal notes that Chinese law provides for foreign travel, emigration and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China's major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight.
The Tribunal footnoted paragraph [3.52] of the Country Information Report dated 21 December 2017 which refers to the difficulty Falun Gong practitioners might experience in obtaining a passport. It also footnoted paragraph [5.20] of the 2017 report which sets out the technological measures that Chinese authorities deploy (including "[f]acial recognition technology") to monitor entry and exit at major ports. A copy of that report is annexed to the applicant's affidavit sworn 26 September 2024 that was tendered in evidence before me.
Ms Maddocks, counsel for Ms CNI20, says the Tribunal made an error when it relied on the 2017 report to evaluate the circumstances surrounding the applicant's departure from China in 2015. Ms Maddocks argued the evidence does not establish all the technological measures which made it difficult to slip through border controls had been introduced in 2015. The country information report that was extant in 2015 noted security measures used at major airports were comprehensive but paragraph [5.16] of that report does not include the same level of detail about the technological measures that were actually then in place at ports. Ms Maddocks said that absence of detail about those enhanced measures is not surprising given the 2017 report notes at [2.30] media reports from 2016 which recorded the Chinese authorities had begun to roll out some of the enhanced measures that impressed the Tribunal. Given those measures were not recorded in the 2015 report, it was not appropriate to infer all those measures were in place at the date of the applicant's departure.
In effect, Ms Maddocks argued the Tribunal failed to have regard to relevant evidence contained in both the 2017 country information report (specifically, paragraph [2.30] of that report) and the contents of the 2015 country information report to the extent those contents were relevant. Instead, the Tribunal made an adverse credit finding that was at least partly based on scepticism that the applicant was able to evade some border control measures that may not have been in place when she left China. That adverse credit finding was not properly supported, and - given the centrality of the finding to the outcome - renders the decision unreasonable.
Mr Reilly pointed out it was a matter for the Tribunal to weigh and evaluate evidence: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13] per Gray, Tamberlin and Lander JJ. That is obviously true, but the criticism here is that the Tribunal applied the information contained in the 2017 report uncritically - that is, without any evaluation of its relevance or weight - when the ministerial determination specifically requires that the information in those reports be taken into account where relevant. The information in the 2017 report about exit controls was not relevant to the evaluation of Ms CNI20's credit.
In oral submissions, Mr Reilly noted the Full Court had emphasised the importance of relying on the most up-to-date information when making an assessment: see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [72]-[77] per Kenny, Griffiths and Mortimer JJ. But that submission does not engage with the fact the 2017 report offered an assessment of the state of border controls which it acknowledged (in para [2.30]) were stricter and more difficult to avoid from 2016 when powerful new facial recognition and artificial intelligence tools were reportedly introduced - a qualification that the Tribunal did not consider when making its findings. Given the Tribunal's assessment of credit was based at least partly on the unlikelihood of Ms CNI20 being able to readily exit in the face of technology measures when those measures had not yet been introduced, that is a problem.
I am satisfied the Tribunal relied on material in the 2017 country information report that was not relevant to the finding the Tribunal made as to credit, nor was that evidence logically probative in the circumstances. It follows the decision was unreasonable, which is a material jurisdictional error. While Mr Reilly argued there was other evidence upon which the Tribunal might (and did) base its observations about the efficacy of border controls, the Tribunal is required to consider all the relevant evidence and deal with it logically. Provided it goes through that process, the weight the Tribunal accords the evidence is a matter for the Tribunal alone. Even so, the Court may intervene when the process miscarries. The process miscarried in this case at least partly because the Tribunal's incredulous response to the applicant's account of her departure proceeded on a misunderstanding about the extent and efficacy of border controls that were in place at the relevant time. To the extent there is any question about the materiality of that jurisdictional error, I am satisfied there was a real possibility the Tribunal might have taken a different view of the applicant's credit if it was not operating on the misunderstanding that has been identified.
Grounds one, three, four and five
I have already observed Ms CNI20 was not successful in relation to grounds one, three and four, and I am satisfied ground five is effectively dealt with by my reasons in relation to grounds two and six. I will deal with each of these grounds briefly in turn.
Ground one alleges the Tribunal inappropriately slipped into the role of 'arbiter' of religious doctrine when it questioned Ms CNI20 about her understanding of the precepts and practices of Falun Gong. In written submissions lodged on the applicant's behalf, it was acknowledged the Tribunal was entitled to test an applicant's knowledge of their claimed religion. Indeed, the Tribunal would not be entitled to reach a conclusion on that question without establishing a factual foundation for doing so. But there are limits to how far the Tribunal may go. It is not administering a theology exam or awarding a prize for divinity, and it should not set itself up as an authority on matters of religious dogma. The proper limits to the Tribunal's inquiry can be hard to discern in some cases, as Kenny J observed in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 259; [2010] FCAFC 108. In that case, her Honour explained at [38]-[39]:
…there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant's answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
39. If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant's claim based on perceived deficiencies in the applicant's knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant's position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal's material and the applicant's answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal's material and the applicant's answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant's knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.
While it can sometimes be difficult to discern the proper scope and focus of the Tribunal's inquiry, this was not one of those hard cases. The Tribunal did not appear to have any preconceived notions of what a practitioner of Falun Gong should know: the Tribunal attempted to elicit what Ms CNI20 did know, and it was unimpressed by the limited recall of the details of the exercises and the teachings of Falun Gong. While I have already explained the Tribunal led itself into error when it failed to engage with Ms CNI20's explanation for that poor recall, the Tribunal did not stray into error by the questions it asked, nor did it otherwise behave unreasonably in evaluating the answers (save for the failure to consider the explanation for the paucity of detail). There is no substance to ground one.
Ground three criticises the Tribunal's decision to proceed with the hearing by telephone - particularly in circumstances where issues of credit were likely to be central to the decision it was required to make. Ms CNI20 says the hearing format effectively denied her a real and meaningful opportunity to participate in the hearing as required in s 425 of the Act. The applicant's written submission pointed out the Tribunal originally invited her to attend an 'in person' hearing at the Sydney registry but belatedly informed her the hearing would be conducted over the telephone because of restrictions associated with Covid-19. That decision was made after the Tribunal (as opposed to the presiding member) made a corporate decision that it would suspend all 'in person' hearings. I understand that approach was subsequently articulated in a practice direction issued by the president of the Tribunal under s 19D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[3]
[3] The minister sought leave to file an affidavit just before judgment was delivered that confirmed there was no practice direction in place at the time of the Tribunal’s decision in this case. However, there was an approach that had been announced on the Tribunal’s website. The applicant did not provide their consent for the affidavit to be filed. As it stands, the information provided by the minister does not materially alter the observations in the judgment so there is no need for leave to be given to introduce the evidence at this late stage.
While we habitually refer to the 'rules of procedural fairness', they are not a fixed canon. As Middleton and Wigney JJ explained in Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82; [2014] FCAFC 156 at [177]:
…There are no concrete rules as to what procedures a decision-maker must employ to provide procedural fairness in any particular case. What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts, including any statutory or regulatory requirements or considerations: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) at [26], [29]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 (Saeed) at [19]-[20]; SZQHH at [26]; see too Re Minster for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 at [30]-[32]. The content of procedural fairness is flexible and adaptable to the circumstances of the particular case (Saeed at [18]) and must be approached on the basis of what is reasonable (Kioa at 627) and necessary to avoid "practical injustice": Lam at [37]-[38].
One circumstance which had to be considered was the impact of Covid-19 restrictions that had recently been introduced. At the outset of the pandemic, it was impossible to know how long those restrictions might last. During that extraordinary time, and given the Tribunal's object in s 2A of the AAT Act, it was not unreasonable for the Tribunal as an institution to switch over to remote hearings. All courts and tribunals did the same thing with varying degrees of enthusiasm and competence. The hearing invitation makes clear that the presiding member in this case took account of the difficulty posed by Covid-19 and determined the hearing could proceed by telephone. He invited the applicant and her then-representative to make submissions if they had a different view, but they did not demur.
Courts have traditionally regarded the hearing in person as the 'gold standard' but in an administrative tribunal (particularly one charged with the object in s 2A of the AAT Act) other considerations can tip the balance in favour of remote hearing processes. Experience shows remote hearings - particularly those which include video, like Teams or Zoom or Webbex - are usually a satisfactory (and occasionally superior) substitute for the hearing in person. Telephone hearings offer a more limited form of interaction than a video hearing, but - if the rules of procedural fairness are not fixed - it would be an error to insist on a general rule that telephone hearings are inappropriate where issues of credit are being decided. The Tribunal has relied on telephone evidence for decades. To suggest one must see a witness to evaluate their credit risks falling into the error of assuming that one's evaluation of credit is usefully informed by demeanour.
The problems in this case arose out of the Tribunal's reasoning process, not the format of the hearing. There is nothing in the transcript of the hearing which suggests Ms CNI20 was inhibited by the format of the hearing as she gave evidence. The interpreter was obviously careful to ensure the questions and answers were interpreted, and the interpreter asked for clarification when required. There is no substance to this ground of review.
The fourth ground of review traverses similar issues to the third ground. The applicant argues the Tribunal acted unreasonably when it exercised the discretion in s 429A of the Act to conduct a hearing by telephone. At a minimum the applicant says the Court cannot be satisfied the Tribunal acted reasonably when it exercised the discretion because it did not give reasons for doing so.
The hearing invitation makes clear the Tribunal resolved to proceed with a remote hearing because of Covid-19 restrictions. I acknowledge there is no further explanation as to why it elected to proceed by telephone instead of Microsoft Teams (Teams), assuming Teams was a readily available option at that very early stage of the pandemic. (There is no evidence before me that Teams was widely available and routinely used at the Tribunal so early in 2020; if it was not ubiquitous by that point, that might explain why it was not discussed.) Whether or not the choice of format was ultimately a wise one is not the question. I do not think I can draw the inference that the decision to proceed in that way was unreasonable given the Tribunal said it had considered the option and invited submissions to the contrary, even if that invitation was relatively perfunctory. The fourth ground of review therefore fails.
That leaves only ground five, which contends the Tribunal's findings of credit were irrational, illogical or unreasonable. The applicant's written submissions suggest the adverse credit finding was based on objectively minor discrepancies or trivial criticisms of the applicant's evidence. As I understand the argument, the Tribunal's finding that Ms CNI20 had fabricated her evidence was unreasonable because it was not open to conclude a witness was a liar on the strength of minor criticisms.
I have already explained in my discussion of grounds two and six that the adverse credit finding was unreasonable because of problems in the Tribunal's fact-finding and evaluation process. I also expressed my concern that the Tribunal should go so far as to conclude the applicant had fabricated her evidence - a finding that she was dishonest - without properly weighing all the evidence. There is no need to say anything further in relation to this ground.
Conclusion
The Tribunal's decision cannot stand for the reasons I have explained. A writ of certiorari shall issue to quash the decision and a writ of mandamus shall be directed to the Administrative Review Tribunal directing it to reconstitute the Tribunal so that a different member reconsiders the decision according to law.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 18 November 2024
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