DYL16 v Minister for Immigration
[2020] FCCA 2244
•14 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DYL16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2244 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – protection visa – s.424AA of the Migration Act 1958 – legal unreasonableness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424AA, 424A |
| Cases cited: BVE16 v Minister for Immigration and Border Protection (2018) 261 FCR 148; [2018] FCA 922 |
| First Applicant: | DYL16 |
| Second Applicant: | DYM16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3600 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 7 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr Jones |
| Solicitors for the Applicants: | Concisus Legal |
| Counsel for the Respondents: | Mr Swan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3600 of 2016
| DYL16 |
First Applicant
| DYM16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 28 November 2016. The Tribunal affirmed a decision of 19 February 2015 of a delegate of the First Respondent to refuse to grant protection visas to the Applicants.
The First and Second Applicants are wife and husband and citizens of China who arrived in Australia in December 1997. They have a lengthy migration history, as detailed in the delegate’s decision.
In December 1997 they made separate protection visa applications in which they did not disclose their relationship. They each claimed that they were “from the same work unit” and arrived together on a business trip with a third person who was a member of the Communist Party (Mr Z). Each claimed to have a spouse and child in China. Each Applicant claimed to have joined Yi Guan Dao (YGD) (described as a counter revolutionary religious sect that was banned in China) while in Australia and to fear harm on this basis. Both applications were refused on 22 May 1998.
The Second Applicant made a further protection visa application on 11 December 2000 in which he named the First Applicant as his wife and a dependant. He included a claim to fear harm as a Falun Gong follower. This application was deemed invalid by virtue of the operation of s.48B of the Migration Act 1958 (Cth) (the Act).
It appears that it was not until 18 May 2005 that the Second Applicant was validly notified of the refusal of his 1997 protection visa application. He sought review by the Refugee Review Tribunal in 2005. He relied on his YGD and Falun Gong claims. The Tribunal affirmed the delegate’s decision in November or December 2005.
The Second Applicant successfully sought judicial review in the Federal Magistrates Court (as this court then was). The court remitted the application by consent. Upon reconsideration, the Refugee Review Tribunal again affirmed the delegate’s decision (in January 2007). The Second Applicant unsuccessfully sought judicial review.
It was not until 15 July 2008 that the First Applicant sought review of the 1998 refusal of her 1997 application. She claimed she had become a YGD follower in China through her grandmother. The Refugee Review Tribunal affirmed the delegate’s decision on 12 January 2009. The First Applicant sought judicial review, but withdrew that application.
In December 2013 the First Applicant lodged a second valid protection visa application following the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 353; [2013] FCAFC 71 relying on the same claims that she made in her 1997 application. The Second Applicant was included as a dependant. The Second Applicant also submitted a separate protection visa application on 17 June 2014 in which he relied on his YGD claims.
The First Applicant attended an interview with a delegate of the First Respondent on 14 May 2014 and elaborated on her claims. The Second Applicant attended an interview with the same delegate on 23 September 2014. He withdrew any Falun Gong claims.
Both applications were refused by the delegate who was not satisfied that either Applicant was a genuine follower of YGD.
On 20 March 2015 the Applicants applied to the Tribunal for review of the delegate’s decision. They both relied on their 1997 claims that they had arrived in Australia on a business trip with each other and Mr Z. They each claimed that after their arrival, they and Mr Z attended a Weide temple (the Terrey Hills temple) “out of curiosity” accompanied by a named person (Mr L) who was said to be a pious follower of the religion. They also claimed that Mr Z had told each of them that the religion which they had been exposed to was YGD, that YGD was banned in China and that he had told his superiors in China about their activities in Australia. They each claimed that they subsequently became a full member or follower of YGD and that they were afraid to return to China.
The Tribunal Decision
On 28 November 2016 the Tribunal affirmed the decision of the delegate not to grant protection visas to the Applicants.
In its reasons for decision the Tribunal noted that both Applicants attended a Tribunal hearing on 4 November 2016. A transcript of the Tribunal hearing is in evidence as an annexure to an affidavit of Sophie Xi Wang affirmed on 26 July 2019. As discussed below, at the hearing the Tribunal put certain matters to the Applicants for comment.
The First Applicant submitted photographs, said to have been taken in October 2016 at a Buddhist temple in Marsfield which she attended. She told the Tribunal that she went there regularly. She claimed that if she returned to China she would be detained and interrogated by the Chinese authorities because she was a follower of YGD. While the Tribunal recorded that the Second Applicant confirmed to it that he was relying solely the First Applicant’s claims, he also claimed that he would spread YGD beliefs to other people.
Relevantly, the Tribunal recorded that the First Applicant said that when she arrived in Australia in 1997 she had no friends or relatives here, but that within about 20 days she and the Second Applicant went to a temple with Mr L, who was a former colleague of the Second Applicant’s father. She told the Tribunal that Mr L and his wife were members of the Terrey Hills Buddhist temple they went to in 1997. She claimed that she became a formal member of that temple in 1997 and attended it over the years about once or twice a month, although she had practised YGD at home for a period and had also gone to other Buddhist temples. She claimed that since early 2015 she had practised regularly at a temple in Marsfield.
Contrary to her 2008 claims, the First Applicant’s evidence to the Tribunal was that she had little knowledge of YGD when she arrived in Australia. She told it that while she and Mr L spoke Mandarin, most people at the Terrey Hills temple spoke Cantonese, so she had very little communication with them. When questioned about why Mr L went to a Cantonese-speaking temple rather than a Mandarin-speaking one, she said she had never asked him and suggested that there were not many Buddhist Mandarin-speaking temples at the time, although she did not know how many there were. She indicated that perhaps because of this she did not feel close to the temple and that she had asked her friend if there was another temple to attend. She and her friend found her current Mandarin-speaking temple in 2015.
The Tribunal described the Applicants’ migration history and protection visa applications. It observed that the Applicants’ claim was that they were followers of YGD and would be detained and interrogated if they returned to China and that they had no other claims. However the Tribunal found that the Applicants’ evidence regarding their claims lacked credibility. It was not satisfied that they were reliable, credible or truthful witnesses. It found that they had fabricated their claims in order to be granted protection visas.
The Tribunal had regard to the fact that during the extended period in which the Applicants had been in Australia, there had been “several significant falsifications of evidence” to which they had subsequently admitted. These falsifications were said to include the fact that in the First Applicant’s 1997 protection visa application she had claimed that she was married to a person other than the Second Applicant and that she had a son in China, whereas she later claimed that she was married to the Second Applicant with whom she had a daughter who was in China. In addition, the Second Applicant had made written and oral claims in 2000 and 2005 to be a Falun Gong member, but had withdrawn these claims in 2014.
The Tribunal considered, but did not accept, the Applicants’ evidence that their false claims were the result of a migration agent’s advice. It observed that the Applicants knew that the claims were untrue when they made them. It considered it reasonable to believe that, regardless of “being new” to the Australian legal system, the Applicants knew that they needed to provide truthful claims. The Tribunal was of the view that the Applicants had been “quite happy” to present untruthful claims and only sought to display contrition once their applications were unsuccessful. The Tribunal also had regard to the fact that despite having the names of their former agents available to them, neither Applicant had lodged a complaint against an agent or sought to find out how to do so. This raised a concern for the Tribunal that the fabrications were not “foisted” upon the Applicants, but were made by them in full knowledge that they were providing false information.
The Tribunal did not accept that either Applicant was a YGD adherent or would be perceived as such in China. It found that their evidence about their attraction to the YGD religion was inconsistent and lacked credibility. It had regard to the fact that while (in 2008) the First Applicant had claimed that she had been a YGD follower in China through her grandmother, during the Tribunal hearing she had claimed that she first became attracted to the religion in Australia. It did not accept that the First Applicant made the claim that she was a YGD follower in China solely on the advice of her agent, given that she knew it to be untrue at the time she said it. It was of the view that such fabrication followed a pattern of behaviour with respect to various claims.
Given its findings as to the First Applicant’s willingness to fabricate claims in support of her earlier protection visa application, the Tribunal was also not satisfied that her claim about her introduction to the Terrey Hills temple was credible. The Tribunal noted that the First Applicant had initially claimed that she had gone there with two people from her work (one of whom was later disclosed to be her husband) and Mr L, a pious follower and member of the temple. She told the Tribunal that she and her husband went there 20 days after arriving in Australia and that Mr L was a colleague of her husband’s father. However the Tribunal had regard to the fact that in the Second Applicant’s 2005 application (which, it appears, is a reference to his 2005 review application) he had claimed that another person (Mr H), who was a friend he knew from China, had invited him to go to the Terrey Hills temple with him.
The Tribunal did not accept the suggested explanations that these inconsistencies were due to poor memory, because Mr H and Mr L knew each other, or because Mr H and Mr L were together when the Second Applicant visited Mr L. It found that none of these explanations accounted for the degree of inconsistency apparent in the Applicants’ claims. The Tribunal was satisfied that these inconsistencies resulted from the fact that the Applicants had fabricated elements of their 1997 application.
The Tribunal also considered that the claimed “choice” of the Terrey Hills temple lacked credibility. It did not accept that the Applicants were regular attendees or that if they did attend that temple it was for any purpose other than to form the basis of a fabricated claim to be YGD followers. The Tribunal was of the view that the claim that the Mandarin-speaking Applicants were taken to a temple with a Cantonese-speaking congregation made “little sense” given the number of Mandarin speakers in Sydney and the number of Mandarin-speaking temples it was reasonable to believe would “service them”. The Tribunal referred to information on the internet about Taoist temples in Sydney and suggested that it was “reasonable that an appropriate temple could have been sought had they wished”.
Having regard to the Applicants’ lack of credibility, the Tribunal was not satisfied that lectures at the Terrey Hills temple were given in Mandarin (as they claimed), as this claim relied entirely on their oral evidence. The Tribunal was also of the view that it seemed “implausible” that another non-Cantonese speaker (Mr L) would be a pious follower and member of a temple that did not speak his language and that he would choose to take Mandarin-speaking members of a business delegation to a “remote” Cantonese-speaking temple.
The Tribunal took into account a statutory declaration from Mr L, but gave it little weight as he had not attended the Tribunal hearing as a witness so that the Tribunal’s doubts concerning why a Mandarin speaker from Campsie would attend a Cantonese-speaking temple in Terrey Hills remained unanswered.
The Tribunal also gave little weight to a certificate from the Terrey Hills temple that stated the First Applicant was a YGD follower and to a document allegedly from her former employer that stated that she had been reported to Chinese state security. It had regard to the Applicants’ willingness to fabricate claims and their consequential lack of credibility.
The Tribunal took into account two donations to the Nai Tak Buddhist Association at Terrey Hills in 2008 and 2014 by a contributor whose name was recorded in Chinese. It noted that there was a large gap in contributions and that the second donation was made less than six months after the December 2013 protection visa application. In the absence of a regular pattern of donations, it found that this appeared to closely coincide with submission of the 2013 application.
The Tribunal found that the Applicants’ temple attendance was not indicative of a strong commitment to the YGD faith as they claimed to have. It noted that despite the First Applicant claiming that she did not feel close to the Cantonese-speaking Terrey Hills temple, she had not sought out a Mandarin-speaking temple for 17 years. It did not accept the claim that at one time the First Applicant had attended a Mandarin-speaking temple at Monterey, given the lack of evidence to support this claim and the fact that her lack of credibility meant that it could not rely on her oral evidence.
The Tribunal accepted that at the time of the decision the First Applicant attended a YGD temple at Marsfield, but did not accept that this was indicative of a true belief in YGD. It found that it was done solely for the purpose of improving her protection claim. The Tribunal gave little weight to a statement of a witness (albeit given in good faith) who was unaware of the totality of the Applicants’ evidence and the credibility issues this raised. It also noted that the First Applicant’s attendance at the Marsfield temple began in 2015, after the latest protection visa application. As a consequence, it gave little weight to the evidence of baptism, donation receipts and photographs as proof of a genuine conversion to YGD.
The Tribunal concluded that because it had found “the applicants’ actions not to be genuine with regard to following YGD”, it followed that “they would not be followers of YGD on return to China and would not come to the attention of Chinese authorities let alone result in serious harm”. It also found that it followed that the Second Applicant would not seek to spread his YGD beliefs in China.
The Tribunal concluded that the Applicants did not have a well-founded fear of persecution for any Convention reason, now or in the reasonably foreseeable future.
In considering the complementary protection criterion, the Tribunal stated:
52. Although I have disregarded the applicants’ temple attendance, baptism and donations for the purposes of the applicants’ refugee claims, I have had regard to them in assessing their claims relating to s.36(2)(aa). Because I do not accept that the applicants have been or are genuine follower of YGD or would be perceived to be followers, or that they are wanted by the Chinese authorities for YGD activities I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm
53. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicants will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
The Tribunal concluded that it was not satisfied that either Applicant was a person in respect of whom Australia had protection obligations or a family member of such a person. It affirmed the decision not to grant the Applicants protection visas.
Ground 1: Section 424AA issue
The Applicants sought judicial review in December 2016. They now rely on an amended application.
Ground 1 is as follows:
1. The Tribunal made a jurisdictional error by failing properly to apply s 424AA of the Migration Act 1958 (Cth) (the Act):
a. Section 424AA(1)(b)(iii) of the Act when read with s 424A(2A) of the Act requires the Tribunal to advise the Applicant that he or she may seek additional time within which to comment or respond to the information;
b. Section 424AA(1)(b)(iv) of the Act requires the Tribunal to adjourn the review if the Tribunal considers that the Applicant reasonably needs additional time to comment on or respond to the information;
c. On page 13 at lines 14-17 of the transcript, the Tribunal purported to offer the Applicant additional time to comment or respond to the information but expressed concern as to how the Applicant might use the time, in particular that she “might come out with reasons to think about it” and it was “not something you should necessarily think about”;
d. Following this remark, the Applicant stated at page 13 line 17 that she “can answer right now”;
e. The Tribunal was required by s 424AA(1)(b)(iii) to offer additional time without qualification or without suggesting that the Tribunal might take an adverse view of an answer given pursuant to additional time. At most, the Tribunal was able to indicate that, following an unqualified offer of additional time, the Tribunal would only grant a request for additional time if the Tribunal considered the request reasonable.
f. As a result, the Tribunal failed to observe s 424AA and / or s 424A of the Act.
Section 424AA and 424A of the Act relevantly provide:
424AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so - the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
…
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
…
The Applicants agreed that, as the First Respondent had submitted, s.424AA does not establish a freestanding obligation, but provides a mechanism by which the Tribunal is relieved of the obligation to comply with s.424A by virtue of s.424A(2A). It was accepted that when s.424AA is engaged it creates no imperative duties, but rather is an enabling provision which permits the Tribunal, if it wishes, to give particulars of information within s.424A(1) orally at a hearing (SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372 at [22] per Perram J and also SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90; [2015] FCAFC 3 at [57] per Perram, Jagot and Griffiths JJ). The Applicants recognised that, in contrast to s.424A(1), s.424AA(1)(a) of the Act is couched in discretionary terms and provides that the Tribunal “may” orally give to an applicant clear particulars of relevant information (also see SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [24] per Cowdroy J and SZTVG v Minister for Immigration and Border Protection [2016] FCA 1172 at [42] per Burley J).
Counsel for the Applicants acknowledged at the hearing that there was a threshold question as to whether there was “information” within s.424A(1) of the Act in the sense considered in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [17] and Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [9] (and see SZNKO v Minister for Immigration andCitizenship (2010) 184 FCR 505; [2010] FCA 297 at [10] per Flick J).
The Applicants pointed to the exchange at the Tribunal hearing that identified the material the subject of the remarks of the Tribunal in issue in this ground. It is as follows (transcript p.12, line 31 to p.13, line 2):
[Tribunal]: Thank you. I’ve just got some questions, but I have to tell you about a section in the Migration Act first, and it’s called section 424AA, and it says that I may verbally give you clear particulars of any information that would form the reason, or part of the reason for refusing you a protection visa. One of the things I have to make a determination on is the credibility of your claims and there are some issues that have come up previously and some inconsistencies that I will bring to your attention. First of all, you said here today that about 20 days after arriving in Australia you met a colleague of your husband’s father from China, [Mr L], and this was the way in which you were introduced to the temple in Terrey Hills.
However, in your husband’s 2005 application, your husband said that he had a friend called [Mr H] who he knew from China and that your husband phoned him two to three days after he arrived here. This friend told him he had joined Yi-Guan Dao, and invited your husband to go there with him. Now, there is no mention of you in that claim and that’s also inconsistent with the claim that you made here today about how the both of you were first introduced to this temple in Terrey Hills, which may call into question the credibility of your claim to have gone to this temple in Terrey Hills in the manner in which you went there. You can have more time to respond to that, but I would ask for your comments on that information.
The hearing continued (transcript p.13, lines 3-12):
[First Applicant] THROUGH INTERPRETER: Should I answer, or--
[Tribunal]: No, the question is to--
[First Applicant] THROUGH INTERPRETER: I should answer right now, or can I just - ask for extra time to--
[Tribunal]: No, you can have some additional time. We can take a break. What are you going to use the additional time for? It’s a pretty straightforward question.
[First Applicant] THROUGH INTERPRETER: I want to go to toilet, sorry about that, then--
This ground takes issue with transcript p.13, lines 14-16 and the fact that the Tribunal stated:
[Tribunal]: I’m a bit concerned that you might come out with reasons to think about it. It’s not something you should necessarily think about, but if you need a break then you can have a break.
The First Applicant replied (transcript p.13, line 17):
[First Applicant] THROUGH INTERPRETER: I can answer right now.
The Tribunal responded (transcript p.13, line 19):
[Tribunal]: Sure.
The Applicants submitted that in this part of the hearing the Tribunal had not just identified and put to the First Applicant two inconsistent positive claims, but that it had also characterised the 2005 information from the Second Applicant as negative information because it excluded the First Applicant and was a representation that the introduction from Mr H to attend the Terrey Hills temple was for the Second Applicant alone. On this basis it was submitted that, in addition to the implication that there was an inconsistency in the Applicants’ claims in the sense of two conflicting positive statements, this material was information that undermined the First Applicant’s claims, in that the Second Applicant had represented that something happened to him alone to the exclusion of the First Applicant. This was said to be information within s.424A(1) (see SZBYR at [17]-[18] and cf. SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204; [2015] FCA 463 at [52]).
The Applicants suggested that the distinction between “information” and the existence of doubts, inconsistencies, the absence of evidence or the Tribunal’s thought processes (see SZBYR at [18]) was a very fine one (as had been pointed out by Allsop J (as the Chief Justice then was) in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 at [95]). Counsel for the Applicants conceded that this case was “at the margin”. It was submitted however that the material put to the First Applicant to which the comments at p.13, lines 14-17 of the transcript of the Tribunal hearing related, included “information” which enlivened the s.424A(1) obligation.
The Applicants contended that the Tribunal had not met the requirements of s.424AA(1)(b) in relation to this “information” such as to relieve it of the s.424A obligation under s.424A(2A) of the Act. It was pointed out that when the Tribunal sought to put particulars of information to an applicant under s.424AA, s.424AA(1)(b)(iii) of the Act conferred on the applicant an entitlement to seek additional time to comment or to respond. It was submitted that the Tribunal must “meaningfully convey to an applicant the opportunity sought to be secured” by these provisions (SZNKO at [29] per Flick J), but that in this case the Tribunal had failed to convey, without qualification, the First Applicant’s entitlement to seek additional time to comment on or respond to the information described at [39] above. Rather, the Tribunal was said to have suggested to the First Applicant that it might be “concerned” if she did exercise the entitlement by seeking additional time and had indicated that she should not exercise the entitlement, as the information was “not something you should necessarily think about”.
It was conceded that there was no absolute entitlement to additional time to respond to the information. However the Applicants contended that what the Tribunal had stated fell short of an offer of advice that the First Applicant may seek additional time to comment on or respond to the information and an indication that then the Tribunal would consider whether additional time was reasonably needed (as provided for in s.424AA(1)(b)(iii) and (iv) of the Act). On this basis it was submitted that the Tribunal had not put the information to the First Applicant in accordance with s.424AA, so that the s.424A obligation had not been met.
The First Respondent submitted that whether or not the Tribunal thought that what it put to an applicant was information within s.424A(1) would not be determinative. It was pointed out that the subject of the Tribunal’s comments in the impugned portion of the hearing (evidence previously given by the Second Applicant that he was invited to a YGD temple by Mr H) had been described by the Tribunal at transcript p.12 as an inconsistency with the First Applicant’s oral evidence to the Tribunal that they were both first introduced to the Terrey Hills temple by Mr L. It was contended that this inconsistency did not amount to “information” for the purposes of s.424A of the Act in the sense considered in SZBYR. Rather, it was submitted that the Second Applicant’s evidence became significant as a result of the process of comparison with the First Applicant’s evidence and the inconsistency that arose (see SZTNL at [52]-[53]).
In any event, the First Respondent submitted that even if this material was “information” within s.424A(1) of the Act, it was clear that the Tribunal had “advise[d] the applicant that he or she may seek additional time to comment on or respond to the information” under s.424AA(1)(b)(iii) (in the sense described in SZNKO at [29] per Flick J). It was pointed out that on no less than three occasions the Tribunal had told the First Applicant that she could have more time to comment on or respond to what was put to her in this respect.
The First Respondent also contended that, read fairly and in the context of the hearing as a whole, the Tribunal’s comments that it was asking “a pretty straightforward question”, that the question was “not something you should necessarily think about” and that it was “a bit concerned that you might come out with reasons to think about it”, merely indicated its views that it might not be reasonable for the First Applicant to require additional time, which would have been relevant to the Tribunal’s power to consider whether the request for additional time or an adjournment was reasonable, as provided for in s.424AA(1)(b)(iv) of the Act.
Consideration
In SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated at [17]-[18]:
17. Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
18. Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”.
“does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
(footnote omitted)
As the First Respondent submitted, the fact that the material put to the First Applicant was purportedly put under s.424AA of the Act is not determinative of whether it was information that enlivened the s.424A(1) obligation (see SZTGV at [53], SZTNL at [49] and BVE16 v Minister for Immigration and Border Protection (2018) 261 FCR 148; [2018] FCA 922 at [34]).
The Second Applicant’s representation that his first introduction to YGD was in a telephone conversation with Mr H who extended to him an invitation to go to a temple, did not “contain in [its] terms” a rejection, denial or undermining of the First Applicant’s claim to protection as a YGD follower. Understood in this sense, as in SZTNL at [52], this material was not, in itself, of “dispositive relevance”. Rather, the evidence of the Second Applicant as to how he first encountered YGD became significant as a result of the Tribunal’s thought processes and the process of comparison with the First Applicant’s inconsistent evidence about how they were both introduced to the Terrey Hills temple.
Such inconsistency cast doubt on the credibility of the First Applicant’s claim about the manner and circumstances in which she was introduced to the Terrey Hills temple. The Tribunal affirmed the decision under review because it disbelieved the First Applicant’s evidence, having regard, among other things, to the inconsistency between her claim and that of her husband in relation to their introduction to the Terrey Hills temple (see SZBYR at [18]).
Further, in SZTNL at [52] Griffiths J accepted:
… that information merely going to credibility does not fall within s 424A. As Heerey J observed in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [29]:
It can also be noted that the section speaks of information that “would” be the reason etc, not “could” or “might”. This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant’s claims.
Moreover, even if the material in question did not “merely” go to credibility, what was of central concern to the Tribunal was an inconsistency in the Applicants’ evidence. As pointed out in SZBYR at [18] in relation to s.424A(1):
… [h]owever broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …
Inconsistencies do not enliven the s.424A(1) obligation. As there is no obligation to put material which is not “information” to the Applicants under s.424A of the Act, there could be no jurisdictional error arising out of the application of s.424AA in that respect (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]).
As the Applicants submitted, the material put to her at the Tribunal hearing could also be seen as including a negative statement (in that, as the Tribunal stated, the Second Applicant’s 2005 evidence about his 1997 introduction to YGD made no mention of the First Applicant). In this sense, the material could perhaps be seen as in terms undermining the First Applicant’s claims and hence as constituting information that enlivened s.424A(1) of the Act.
However assuming, for present purposes, that that is so, I am nonetheless satisfied that the Tribunal complied with the procedure in s.424AA of the Act in relation to any such “information”.
At the Tribunal hearing the Tribunal identified its power under s.424AA to give “verbally” clear particulars of any information that it considered would form the reason or part of the reason for affirming the decision under review (as required under s.424AA(1)(a)). The Tribunal referred both to the absence of any mention of the First Applicant in her husband’s claim as well as to the inconsistency. No issue is taken with the “particulars” provided. The Tribunal also addressed the requirement in s.424AA(1)(b)(i), in explaining that it had to make a determination about the credibility of the First Applicant’s claims. The Tribunal advised her that there was no mention of her in her husband’s 2005 claims, that there were issues that had come up and inconsistencies it would bring to her attention. The first matter brought to her attention was the difference between the claim she made at the Tribunal hearing about how she and her husband were introduced to the Terrey Hills temple and her husband’s 2005 account of his telephone conversation with Mr H. It explained that the information may call into question the credibility of the First Applicant’s claim to have gone to the Terrey Hills temple in the manner she claimed. There is no suggestion that the Tribunal failed to meet s.424AA(1)(b)(i) in its explanation of the relevance of this material.
The Tribunal then invited the First Applicant to comment or respond, as provided for in s.424A(1)(ii). Importantly, at transcript p.13, lines 1-2 it also advised that she could seek additional time, stating: “You can have more time to respond to that, but I would ask for your comments on that information”, thus addressing the procedural requirement in s.424AA(1)(b)(iii) of the Act. As Flick J indicated in SZNKO at [29]: “Compliance with s 424AA(b)(iii) and/or (iv), does not require a Tribunal Member to repeat the very words employed in s 424AA(b)(iii) in some ritualistic or “parrot-like recantation””. The Tribunal’s subsequent remarks must be seen in light of this initial advice.
In addition, when the First Applicant then asked whether she should answer “right now” or could she ask for “extra time”, the Tribunal repeated that she could have some “additional time” and that they could take a break. It is the case that the Tribunal subsequently made the comments complained of in this ground, but I accept that, in so doing, the Tribunal understood that the First Applicant was enquiring as to whether she could have additional time that would involve an adjournment of the review and was turning its mind to the issue of whether it considered that she reasonably needed additional time to comment or respond to the information (as provided for in s.424AA(1)(b)(iv)) and, indeed, inviting the First Applicant to indicate why she needed additional time. Read in isolation, the Tribunal’s remarks at the hearing at transcript p.13, lines 14-16 did not meaningfully convey the opportunity to seek an adjournment. However, seen in the context of what the Tribunal had previously said, these remarks were an indication of the Tribunal’s view that it might not consider that the First Applicant reasonably needed an adjournment of the review to comment on or respond to the information.
The Tribunal was not obliged to “offer” additional time without qualification, as particular (e) to this ground suggests. The obligation under s.424AA(1)(b)(iii) was to advise the First Applicant that she may seek additional time to comment or respond to the information. In fact, the Tribunal offered more time or a break (at transcript p.13, lines 1-2 and 9), but when the First Applicant indicated an interest in asking for “extra time”, the Tribunal then turned to the issue of the reasonableness of adjourning the review within s.424AA(1)(b)(iv). It was not required to repeat the exact words of either s.424AA(1)(b)(iii) or (iv) in order to satisfy the requirements of those provisions (see SZNKO at [29] per Flick J). The extract from the transcript at p.13, lines 14-17 relied on by the Applicants was reflective of the Tribunal’s preliminary view about whether the First Applicant reasonably needed additional time to comment on or respond to the particular “information” and hence an adjournment of the review and that it did not seem reasonable that the First Applicant needed such additional time. The First Applicant was given the opportunity to address this concern and to explain the need for additional time.
As the First Respondent submitted, when the transcript of the Tribunal hearing is read as a whole, there was sufficient compliance by the Tribunal with s.424AA, including s.424AA(1)(b)(iii), of the Act.
Hence in so far as there was information which enlivened the s.424A(1) obligation, the Tribunal was relieved of that obligation under s.424A(2A) of the Act. This ground is not made out.
Ground 2: Legal unreasonableness issue
Ground 2 in the amended application is as follows:
2. The Tribunal’s finding at [43] that it would have been “reasonable that an appropriate temple could have been sought had they wished” was affected by jurisdictional error in that:
a. At [43], the Tribunal stated that “a quick internet search revealed Taoist temples” at particular locations;
b. [not pressed]
c. The Tribunal’s reasoning with respect to the Taoist temples was legally unreasonable as there was no relevant basis for equating Taoism with Yiguandao.
The relevant paragraph in the Tribunal’s reasons is as follows:
43. The choice of the Terry Hills temple also lacks credibility and I do not accept that they were regular attendees, or if they did attend it was for any other purpose than to form the basis of a fabricated claim to be YGD followers. The applicants (Mandarin speakers) were taken to a temple with a Cantonese-speaking congregation which makes little sense given the number of Mandarin speakers in Sydney and the number of Mandarin-speaking YGD temples it is reasonable to believe would service them. A quick internet search revealed Taoist temples at Redfern, Glebe and Alexandria, Bonnyrigg and other places so it is reasonable that an appropriate temple could have been sought had they wished.
(footnotes omitted)
The Applicants submitted that the Tribunal’s reasoning with respect to the Taoist temples was legally unreasonable as there was no relevant basis for equating Taoism with YGD (see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10] per Kiefel CJ and at [82] per Nettle and Gordon JJ).
The Applicants relied on the fact that it was held in SZVFW that a decision-maker falls into jurisdictional error where it makes material findings of fact which are legally unreasonable in the sense that they lack an evident and intelligible justification. It was submitted that as part of the law of legal unreasonableness, the Immigration Assessment Authority had been held to have made a jurisdictional error where it imposed an arbitrary standard of knowledge upon a person with respect to religion (and, by extension, other matters such as political activity or other conduct) (see BWC16 v Minister for Home Affairs [2018] FCA 1375 at [51], [55] and [59]). The Applicants submitted that, similarly, in this case the Tribunal had imposed an arbitrary standard of Taoism on the Applicants.
The First Respondent submitted that, contrary to the Applicants’ submission, there was no evidence of any material before the Tribunal (or before the court) which demonstrated that YGD and Taoism were not the same or comparable for the purposes of the impugned aspect of the Tribunal’s decision. It was also pointed out that there was evidence before the Tribunal that on arrival in Australia the Applicants were interested in Buddhism and that YGD was a movement within Buddhism.
The First Respondent submitted that, read fairly, the Tribunal’s conclusion at paragraph 43 of its reasons was responding to the First Applicant’s oral evidence in explanation for whether she or Mr L could find a Mandarin-speaking temple and her claimed understanding that there were not many Mandarin-speaking Buddhist temples in Sydney. The First Respondent submitted that the Tribunal’s identification of temples that were Taoist belied the First Applicant’s claims in that respect.
It was submitted that the Tribunal’s reasoning at paragraph 43 of its reasons did not indicate that it was equating Taoism and YGD or treating them as exactly the same faith. Rather, the issue was the fact that Mr L’s and the Applicants’ “choice” of a Cantonese-speaking temple was not credible, in circumstances where they spoke Mandarin and the Applicants had not claimed to have been seeking a YGD temple on arrival in Australia and, ultimately, claimed to have no knowledge of YGD before their arrival in Australia. It was submitted that the impugned finding rose no higher than a finding that there were likely to be other Mandarin-speaking temples in Sydney, yet the Applicants chose not to attend one of those.
Consideration
The Applicants initially referred to the remarks of Kiefel CJ at [10] and Nettle and Gordon JJ at [82] in SZVFW in support of the proposition that the Tribunal’s reasoning with respect to the Taoist temples was legally unreasonable, as there was said to be no relevant basis for equating Taoism with YGD.
SZVFW concerned the exercise of a statutory power (under s.426A of the Act), not the Tribunal’s reasoning. In that context, their Honours referred to the fact that, as explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76], a decision made in exercise of a statutory power, such as the power to adjourn a hearing, may be legally unreasonable where it lacks an evident or intelligible justification.
This is not a case involving an asserted unreasonable exercise of a statutory power. However as explained in oral submissions, the Applicants’ contention was that the principles which applied in cases in relation to the adoption of an arbitrary standard of religious knowledge (such as BWC16) would also apply in this context to support the contention that the Tribunal unreasonably equated Taoist temples with YGD temples in its reasoning at paragraph 43 of the decision and that reasoning in this way was legally unreasonable.
It was suggested that there was nothing in the Tribunal’s reasons to substantiate or explain what was said to amount to a statement by the Tribunal that a Taoist Mandarin-speaking temple was the same as a YGD Mandarin-speaking temple. It was submitted that the absence of reasoning in this respect suggested irrationality or the lack of an evident or intelligible justification amounting to legal unreasonableness.
I am not satisfied that legal unreasonableness has been established. The Applicant has not demonstrated the requisite extreme illogicality or irrationality measured against the standard considered in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. As Crennan and Bell JJ stated at [135]:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. …
In this case it is clear, when paragraph 43 is read in context, that what was of concern to the Tribunal was the choice of the “remote” Cantonese-speaking Terrey Hills temple and whether the Applicants were regular attendees for any purpose other than to fabricate claims to be YGD followers. This concern arose in circumstances where the First Applicant claimed that Mr L, who did not speak Cantonese and lived at Campsie, was a pious follower and member of the Terrey Hills temple which had a Cantonese-speaking congregation and that he chose to take the Mandarin-speaking Applicants there. In addition, the Tribunal was concerned (as it further explained at paragraph 48) that the Applicants did not seek another Mandarin-speaking temple until some 17 years after their introduction to the Terrey Hills temple, despite the First Applicant’s claim that she did not feel close to the temple at Terrey Hills because people there spoke Cantonese.
The Tribunal had before it evidence that on arrival in Australia the Applicants were interested in Buddhism, but had not been aware of YGD. The Second Applicant had also told an earlier Tribunal that YGD was one of the five main Buddhist movements in China and a part of Buddhism.
Moreover, paragraph 43 is to be seen in light of what occurred at the Tribunal hearing (see transcript p.8, lines 5-30). In an exchange about the temples she had attended in Australia, the First Applicant referred to the Terrey Hills temple as a “Buddhist” temple and also to her subsequent attendance in 2014 or 2015 at a different “Buddhist” temple. In that context, the Tribunal queried why Mr L attended the Cantonese-speaking Terrey Hills temple if he (like her) did not speak Cantonese and also why it had taken her so long to seek a Mandarin-speaking temple. The hearing continued (at transcript p.9, line 24 to p.10, line 25):
[Tribunal]: So how did your friend - why is your friend going to this temple if he doesn’t speak Cantonese?
[First Applicant] THROUGH INTERPRETER: I never asked him about that.
[Tribunal]: You don’t think he would find a place that spoke the same language that he speaks?
[First Applicant] THROUGH INTERPRETER: So I never asked him about that question, but from my understanding back then there were not much – not many Buddhism temples at that point of time.
[Tribunal]: Do you know how many there were? Do you know if there was another - do you know if there was a Buddhist temple that spoke Mandarin so he would be more comfortable--
[First Applicant] THROUGH INTERPRETER: So when I firstly came to Australia, I had no idea how many Buddhism temples there and where were they, and for that particular Buddhism temple, this person, my friend didn’t attend that temple either because it was too far away and later on this friend went to another temple near Kogarah in Monterey.
[Tribunal]: I’m just trying to work out why he’s going to a temple where he is not familiar with the language, this friend of yours. Why would he introduce you to a temple that spoke Cantonese, and not a Mandarin speaking Buddhist temple?
[First Applicant] THROUGH INTERPRETER: So when we firstly came to Australia, we were not familiar with other people in the Buddhism temple. When I meant Cantonese speaking, I meant most of them spoke Cantonese, but for the lecture he or she speaks - spoke Mandarin. Yeah, maybe because of that reason I felt not close - not close, so close to that Buddhism temple, and after a while I even asked this friend if there are any other temple I can attend, so because of the two reasons firstly it’s very far away from my house. Secondly most of the people there spoke Cantonese, so at the time I .. (not transcribable) .. to find out a Mandarin speaking temple so that I can be more comfortable.
[Tribunal]: Did you find one?
[First Applicant] THROUGH INTERPRETER: I finally find the current temple.
[Tribunal]: When? When did you find this one?
[First Applicant] THROUGH INTERPRETER: More than one years ago.
[Tribunal]: So 2015?
[First Applicant] THROUGH INTERPRETER: Yes, 2015.
[Tribunal]: That’s 18 years after you started going to the Cantonese speaking one. It doesn't appear to be much of an effort to find a Mandarin speaking--
[First Applicant] THROUGH INTERPRETER: Yeah, finally - I just want to say that finally I want to extend my gratitude to the lecture, to my belief, let me find out the current temple. I really want to extend my gratitude. I feel like there was invisible guidance or hand help me to find the current temple.
Read fairly, at paragraph 43 of its reasons the Tribunal was responding to the First Applicant’s suggestion that from her understanding there were not many Buddhist temples (or many that spoke Mandarin) in explanation for why she was introduced to a Cantonese-speaking Buddhist temple and also why she continued to attend such a temple. In that context the Tribunal referred to the existence of various Taoist temples in support of its view that it would have been reasonable that an appropriate (that is, Mandarin-speaking) Buddhist temple could have been “sought”. Consistent with this, the Tribunal stated at paragraphs 44 to 45:
44. … It … seems implausible that another non-Cantonese speaker [Mr L] would be a pious follower and temple member in a temple that didn't speak his language and then choose to take Mandarin-speaking members of a business delegation to a remote Cantonese-speaking temple.
45. I have taken into account the statutory declaration (folio 77) signed by [Mr L] however lend it little weight. He did not attend as a witness and the doubts concerning why a Mandarin speaker from Campsie would attend a Cantonese-speaking YGD temple in Terry Hills therefore remain unanswered.
After addressing documentary evidence, the Tribunal continued:
48. Their attendance at temple is not indicative of people highly committed to the YGD faith that they claim to be. Despite claiming that she didn’t feel close to the temple at Terry Hills because people spoke Cantonese she didn't seek another, Mandarin-speaking one until 17 years later. I do not accept that she attended a Mandarin-speaking temple at Monterey given the lack of evidence to support this claim and the fact that the lack of credibility of the applicant means that I cannot rely on her oral evidence.
As the First Respondent submitted, the Tribunal’s reasoning does not indicate that it was “equating” Taoism and YGD or treated them as exactly the same faith. Its concern was the introduction of the Applicants to a Cantonese-speaking Buddhist temple by a Mandarin speaker and also his and the First Applicant’s failure to seek out an appropriate Mandarin-speaking temple, in circumstances where it was seen by the Tribunal as reasonable to believe that an appropriate (that is, Mandarin-speaking) temple could have been sought out in Sydney. The premise on which this ground rests is not made out. Rather, the Tribunal had regard to readily available evidence about Taoist temples in Sydney in considering whether it would have been reasonable to seek out a Mandarin-speaking temple.
Even if all decision-makers might not have reasoned in this way, it has not been established that the Tribunal’s reasons in this respect (or more generally) were unintelligible, that its finding (or the decision) was not open on the evidence or that there was an absence of any logical connection between the evidence before the Tribunal as a whole and its reasons in this respect (see SZMDS at [135]). This is not a case in which there was a lack of rational or logical connection between the First Applicant’s evidence and the Tribunal’s assessment of her credit. The issues considered were legitimate ones.
Moreover, the Tribunal did not make a critical finding of fact without probative evidence in the manner considered in BWC16 at [57]-[59]. It did not equate Taoism and YGD such as to fail to engage with the question of whether the First Applicant was in fact a follower of YGD (see BWC16 at [49]). The Tribunal made clear that its concern was the failure of the Mandarin-speaking Mr L and the Applicants to seek out a Mandarin-speaking temple (as opposed to a Cantonese-speaking temple). Its reasoning in this respect and its decision has not been shown to lack an evident or intelligible justification or to impose an arbitrary standard such as to give rise to jurisdictional error. Ground 2 is not made out.
As jurisdictional error has not been established, the application must be dismissed.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 14 August 2020
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