MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2)
[2006] FMCA 1454
•13 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXIV v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2006] FMCA 1454 |
| MIGRATION – Refugee Review Tribunal – exercise of jurisdiction – whether Tribunal failed to consider a discrete element of the applicant’s claim –meaning of the term ‘to consider’ – section 424a – jurisdictional error. MIGRATION – Refugee Review Tribunal – misunderstanding of claim. |
| Migration Act 1958, ss.91r(3), 424a Federal Magistrates Court Rules 2001, r.44.12 |
| Htun v Minister for Immigration, Multicultural & Indigenous Affairs (2001) 194 ALR 244 Minister for Immigration, Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27 Tickner & Ors v Chapman & Ors (1995) 57 FCR 451 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 206 ALR 471 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 |
| Applicant: | MZXIV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 436 of 2006 |
| Judgment of: | Riley FM |
| Hearing date: | 2 October 2006 |
| Date of Last Submission: | 2 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 13 October 2006 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Ms Latif |
| Counsel for the Respondent: | Ms Burchell |
| Solicitors for the Respondent: | Clayton Utz |
DECLARATION
The decision of the second respondent made in matter N06/52995 on
23 February 2006 is unlawful, void and of no force and effect.
ORDERS
There be an order in the nature of certiorari bringing in to court and quashing the decision of the second respondent in matter N06/52995 made on 23 February 2006.
There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review dated 1 August 2005 of the decision of the delegate of the first respondent.
The first respondent pay the applicant’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 436 of 2006
| MZXIV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 27 March 2006, amended on 24 May 2006 and further amended on 30 June 2006 seeking to review a decision of the Refugee Review Tribunal made on 23 February 2006 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant the applicant a protection visa.
The applicant is a 52 year old citizen of the People’s Republic of China. He arrived in Australia on 16 April 2004 on a visitor visa which expired on 16 July 2004. The applicant remained in Australia after the expiry of that visa. He was placed in immigration detention on 14 July 2005.
On 20 July 2005 the applicant applied for a protection visa. In a decision dated 26 July 2005, a delegate of the Minister refused that application. On 1 August 2005, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision. In a decision signed on 29 August 2005, the Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.
On 20 September 2005, the applicant filed an application with this court seeking to review the Tribunal’s decision. On 15 December 2005, orders were made by Federal Magistrate Phipps setting aside the decision made 29 August 2005 and remitting the matter to the Tribunal for further consideration in circumstances where the first respondent had withdrawn from the proceedings. Annexed to the orders was a letter from the first respondent’s solicitors dated 15 December 2005 explaining the reasons for the first respondent’s withdrawal, namely, a potential lack of procedural fairness afforded to the applicant.
The letter explained that the applicant may have suffered a denial of procedural fairness due to a departure from documented departmental policy. Before the Tribunal hearing, the applicant had requested assistance under the Department’s Immigration Advice and Application Assistance Scheme but the request had never been actioned, apparently due to a clerical oversight.
On 16 January 2006, the Tribunal wrote to the applicant, inviting him to attend a hearing of the Tribunal on 3 February 2006. On that date the applicant, with the assistance of his legal representative and an interpreter, gave oral evidence before the Tribunal.
On 10 February 2006, the Tribunal wrote to the applicant pursuant to s.424a of the Migration Act 1958 (“the Act”), inviting him to comment on inconsistencies in information provided by him. The applicant, through his legal representative, responded to the Tribunal’s queries by letter dated 15 February 2006.
On 23 February 2006, the Tribunal handed down its decision and reasons affirming the decision of the Minister’s delegate not to grant a protection visa to the applicant. On 27 March 2006, the applicant filed an application for review with this court. On 28 April 2006, the application was struck out by Federal Magistrate Riethmuller pursuant to r.44.12 of the Federal Magistrates Court Rules 2001, with the applicant being given 14 days in which to file an amended application. On 24 May 2006, the applicant filed an amended application, and on 29 June 2006 he filed a further amended application. He filed written submissions on 30 June 2006. The first respondent filed written submissions on 24 July 2006.
Initial claims
In his application to the Minister for a protection visa, the applicant annexed two documents: the first annexure is short paragraph titled ‘Why did I leave China?’ The paragraph reads as follows:
I was an ordinary employee and driver in a department of the Municipal Government in Nantong City. In 1998, due to my sympathy with and help to two colleagues and good friends who were Falungong practitioners. I was detained and persecuted by the relevant authority of the government. I therefore developed strong hatred against the Chinese government for what they had done. In a country where corrupted officials abuse their power and the government does not respect people’s human rights, people’s lives will be harmed at any time. Therefore, with the help of my brother, I left China for Australia to seek protection. This is the reason why I wanted to leave China.
The second annexure is described as a personal statement. In it, the applicant stated that prior to 2000, he had worked as a driver in a government department in Nantong City. He claimed that he learnt that two of his friends, who were workmates and members of the Chinese Communist Party, were also Falun Gong practitioners.
He claimed that in the second half of 1998, the government department discovered that his friends practiced Falun Gong and that his friends were detained and tortured by the Public Security Bureau.
The applicant claimed that he sent food to his friends and passed on news about them to their families until the authorities found out about his activities. The applicant claims that he was then placed in isolation, interrogated and made to write reports about his involvement in Falun Gong.
The applicant also claimed in his personal statement that at the end of 1999, corrupt officials dismissed from his employment. He claimed that in 2000, he moved to Shanghai and commenced work with Shanghai Fulanjie as a sales manager, a position in which he remained until he came to Australia in 2004.
The applicant continued, in his personal statement, that after arriving in Australia:
For more than one years (sic), I began to know the truth about Falungong from the local newspapers and I also participated in some activities organised by Falungong, such as the activities in front of the Chinese Consulate General in Melbourne at 9:00am, 25 April and the protest organised by Falungong in front of the government building in the afternoon of 24 May.
Recently, following the event of Chen Yonglin, I began to worry and fear. I believe what Chen Yonglin said about Chinese spies in Australia is true. We have often heard in China that the Chinese government has sent many spies to different countries around the world. I have sympathised with Falungong practitioners and helped them, which resulted in me being persecuted and expelled from a government position. Now I even participated in Falungong in Australia. If I return to China and my activities are to be discovered, I will be facing another imprisonment and is (sic) likely to be persecuted to death at any time.
In documents later lodged with the Tribunal, it became apparent that “the event of Chen Yonglin” was a reference to a Chinse diplomat who had sought a protection visa in Australia on the basis that he had helped Falun Gong practitioners in Australia. He said at a media conference that the Chinese government had spies in Australia which provided the Chinese consulate with “personal information about overseas Falun Gong practitioners and Falun Gong group activities.”
Thus, the applicant’s claim as originally put was that he had been persecuted in China for helping Falun Gong friends and since coming to Australia he had participated in Falun Gong protests. He claimed that his participation in protests could be reported back to Chinese authorities by Chinese spies that are known to operate in Australia, and, in that event, he would be likely to be persecuted. In his initial claims, the applicant did not himself claim to be a Falun Gong practitioner.
First proceedings in the Tribunal
At the hearing before the Tribunal as originally constituted, the Tribunal observed that the official crackdown on Falun Gong did not commence until early-mid 1999. The applicant agreed with this but said that the monitoring and detentions of practitioners by the Public Security Bureau (“the PSB”) was already happening in the second half of 1998.
The Tribunal asked the applicant to detail when he had participated in Falun Gong events in Australia. The applicant said that he had attended an event in February 2005 with his brother. The applicant handed to the Tribunal some photographs of a demonstration which he said that his brother had downloaded from the internet. The Tribunal noted that the applicant was not in the photographs and that they did not establish that the applicant was at the event. The applicant reiterated that he attended the protest because his brother wanted him to see the truth about Falun Gong and because his brother knew that the applicant had been reading about and was interested in Falun Gong.
In response to the Tribunal’s questioning, the applicant said that he had started to practice Falun Gong at home in late 2004. Although he had never joined a group, he had bought audiotapes and books.
He claimed, as he was a beginner, to only practice seated meditation and that he would join a practice group in a while.
The Tribunal asked the applicant why his brother had recommended to the applicant a form of exercise that caused a risk of persecution if he returned to China. The applicant told the Tribunal that he was only learning about Falun Gong at that stage and he was not necessarily going to take it up.
The applicant also told the Tribunal that his wife had telephoned him from Shanghai and said that the PSB had raided his home.
The applicant said that the PSB seemed to know about his activities in Australia. The Tribunal said that it had difficulty accepting that he had participated in any Falun Gong activities and that it had reservations about the claim concerning his wife, in the context of the evidence as a whole.
In its findings and reasons, the Tribunal did not accept the applicant’s claims that he was detained or punished in China for aiding detained Falun Gong practitioners. The Tribunal did not believe the applicant’s colleagues had been detained in 1998, prior to the crackdown in mid 1999 on Falun Gong practitioners. The Tribunal did not accept that the applicant had studied or practiced Falun Gong in Australia or attended any Falun Gong related protests or other activities. The Tribunal also rejected the applicant’s claim that his house in Shanghai had been recently raided by the PSB in connection with Falun Gong, on the basis that his claims lacked credibility overall. The Tribunal did not accept that the applicant had a genuine interest in practicing Falun Gong either in Australia or in China.
Second proceedings in the Tribunal
For the second proceedings before the Tribunal, the applicant had the benefit of a legal adviser. With the assistance of his adviser, the applicant submitted a lengthy submission dated 24 January 2006 but faxed to the Tribunal on 31 January 2006, and a number of other documents. These included a statutory declaration made by the applicant on 31 January 2006 and an article from the Epoch Times Weekly dated 6 January 2006.
In the submission dated 24 January 2006, it was stated that while in China the applicant had assisted Falun Gong practitioners without being a Falun Gong practitioner himself, he now considered himself to be a Falun Gong practitioner, albeit a beginner. The submission stated:
In Australia, [MZXIV] has been allowed to find out more about the Falun Gong and the repression Falun Gong practitioners have suffered at the hands of the Chinese authorities. With assistance from his brother and a few Falun Gong practitioners here in Australia, [MZXIV] has started practicing the exercises that are involved in Falun Gong at his home in Melbourne. He has attended meetings run by Falun Gong and also rallies outside the Chinese consulate in Melbourne. Through books and other teachings he has become familiar with the belief system of Falun Gong, and while not an adept he now considers himself to be a Falun Gong practitioner.
The submission dated 24 January 2006 noted that:
[MZXIV] is a person who would have come to the notice of the Chinese authorities through his practice of Falun Gong here in Australia. It was well documented in 2005 that the Chinese government has a number of security agents who monitor the activities of individuals in Australia. [MZXIV], who has participated in Falun Gong activities here in Australia, would have come to the attention of these individuals. In January this year an article in The Epoch Times was written, describing the treatment of [MZXIV] and the two Falun Gong practitioners who [MZXIV] assisted in 1999. [MZXIV] did not seek for his article to be written, but through his discussion with Melissa, the Falun Gong member who visited him at detention, the story was put together. [MZXIV]’s name is not disguised in this article. It is submitted that the Chinese authorities here would have monitored this article in Australia, and that [MZXIV] is in particular danger as a now high profile individual whose story has been made public. [MZXIV], knowing that he should not raise his profile here in Australia has had this happen to him, and though he is not happy his name has been used, he stands by the denunciation of the Chinese authorities.
Materials Sent to China
[MZXIV] has been sending materials back to his wife in China. In addition to personal letters and photographs he has been sending articles that he believes his wife would be interested in. These included commentaries on Falun Gong, articles about corruption in the Chinese government and other independent news sources. [MZXIV] believes that his wife is very interested in these materials and is wanting to receive more independent information about China.
[MZXIV] is aware that some of these letters have not been received by his wife, letters that he sent have been intercepted by the Chinese authorities who would be monitoring his mail and other forms of communication. That the Chinese authorities are aware that [MZXIV] has been sending material back to China puts him in an invidious position as the authorities are highly likely to interrogate [MZXIV] about this material if he is returned to China.
The RRT decision mentioned above also makes comment upon the practice of returning materials from overseas to China. Similarly to [MZXIV], the applicant feared returning to China due to sending Falun Gong materials to China and the practice of the Public Security Bureau of checking mail of known practitioners. Professor Blay states that:
“During the year [2002], authorities monitored telephone conversations, facsimile transmissions, email and internet communications. Authorities also opened and censored domestic and international mail. The security services routinely monitored and entered residences and offices to gain access to computers telephones and fax machines. …On the evidence based on country reports, the Tribunal also accepts that the authorities in China have the resources, and may have been monitoring mail coming into the country; and given the background of the Applicant, it is possible that the authorities may have discovered that the applicant has sent prohibited mail into the country for which she could be punished on her return to China.”
These materials that have been sent home by [MZXIV] are very similar in content as the example above. The PSB would be monitoring his mail for more materials.
The Epoch Times Article said, in brief, that the applicant had seen two of his Falun Gong work colleagues brutally beaten, and had seen them in detention being interrogated and beaten. The applicant was reported in the article to have claimed that he took food to the detainees but that he was then locked up himself and beaten and forced to write confessions.
In his statutory declaration dated 31 January 2006, the applicant said the following, amongst other things:
22.When I arrived in Australia I was able to read more articles about the world and China in particular. I began cutting out interesting articles about corruption and Falun Gong and other articles that I knew would interest my wife. I also sent her an article called the ‘9 Comments on the Chinese Communist Party’, that was published in November 2004. I sent these materials to her by mail. I am aware that this could cause her some difficulties but I know that she wishes to be provided with the truth and these articles present what is going on in China. If I was out of detention I would continue to send her articles.
23.Since I have been in detention my apartment has been raided and my wife questioned by authorities. I know that my mail has been monitored, as certain letters that I know have been sent have not been received by my wife. My brother, who has spoken to my wife has confirmed that these letters have not been received.
In addition, the submission dated 24 January 2006 noted the disclosures of Chen Yonglin concerning the intelligence activities of Chinese consulate staff in Australia. The submissions also described an incident in which a female Chinese detainee at Maribyrnong Immigration Detention Centre, who had applied for a protection visa, received a phone call from a person who identified himself as a member of the Chinese consulate staff. It was claimed that the detainee was told by the consulate staff member not to make disparaging comments about China in any interview with Australian officials or she would be in trouble if she returned to China.
The submission noted that the applicant was concerned by the incident and fearful that should he return to China, the authorities would target him as well.
The applicant also lodged with the Tribunal a document headed “Diplomat Chen Yonglin Presents Evidence Showing the CCP Collecting Names of Overseas Falun Gong Practitioners (Photos).” The document reported that Chen Yonglin, a former Chinese diplomat, at a press conference on 10 July 2005:
…presented other evidence, showing how CCP-hired informants provide Chinese consulates with personal information about overseas Falun Gong practitioners and Falun Gong group activities.
In its reasons for decision the Tribunal reproduced a number of documents in full including the translations of the two documents annexed to the applicant’s visa application, the earlier Tribunal’s summary of the hearing before it, the submissions made by the applicant’s legal representative dated 24 January 2006, the applicant’s statutory declaration sworn on 31 January 2006 and a translation of the article in the Epoch Times. In its reasons for decision, the Tribunal did not reproduce the material concerning Chen Yonglin or otherwise refer to it.
Oral evidence given by the applicant was summarised in the Tribunal decision. At the second hearing, the applicant said that among other things, he had incorrectly stated in his first submission that the acts of violence against Falun Gong practitioners including his two colleagues, had taken place in 1998, as the acts of violence had actually taken place in 1999. The applicant also claimed that his account of events in the article published in the Epoch Times on 6 January 2006 was accurate, despite inconsistencies between the account in the newspaper and other accounts submitted by the applicant.
The Tribunal did not accept the truth of the applicant’s claims largely on the basis of inconsistencies between the accounts provided by the applicant to Australian authorities over time. The Tribunal also said that it was:
…reinforced in [its] view that the applicant has concocted his claims by … the fact that he delayed more than 12 months after arriving in Australia before seeking protection and only did so after being detained for breach of his visa conditions.
The Tribunal was not convinced that the applicant was a Falun Gong practitioner, saying:
He demonstrated little knowledge before the Tribunal differently constituted. Before me, he had done his homework and was able to answer two questions he had been unable to answer when asked by the presiding Member of the previous Tribunal. However, otherwise, his knowledge was limited. He has provided no supporting evidence from the Australian Falun Gong authorities and his explanation as to why he has not joined a practice group is not credible – most practitioners have jobs and require transport to arrive at a practice site, but they manage it somehow, because it is considered highly desirable, even if not obligatory. I would accept it is the applicant were only able to join fellow practitioners occasionally, but not to have made any contact at all is not consistent with being a genuine practitioner.
The Tribunal considered in its reasons for decision whether the applicant might suffer harm amounting to persecution as a result of the publication of the article naming him personally in the Epoch Times. In this regard, the Tribunal said:
The question arises, however, whether the appearance of the article in the Epoch Times Weekly would result in the applicant suffering harm amounting to persecution if he were to return to China. I find that, while the Chinese authorities would not be favourably impressed by the claims made in the article, they would know that they were untrue. Accordingly, I am satisfied that, whatever administrative measures the applicant might suffer would be short term and would fall short of anything which might constitute persecution. Moreover, I am satisfied that the applicant supplied to Epoch Times an embellished account of his claimed but fictitious experiences purely in order to bolster his claim for protection. In accordance with s.91r(3)of the Migration Act, therefore, I will disregard this article.
Finally, the Tribunal considered whether the applicant might suffer harm amounting to persecution as a consequence of mail sent by him to his wife in China being intercepted by Chinese authorities:
The applicant through his adviser claimed that he had sent Falun Gong materials to his wife through the post. I do not believe this claim. As indicated above, I do not accept that the applicant is a Falun Gong believer and practitioner. There is no reason, therefore, why he should place his wife at serious risk of persecution by sending her material which would attract the unfavourable attention of the Chinese authorities. Indeed, to do so, giving his claimed feelings about those authorities would be really perverse. Additionally, the applicant’s submission on
31 January 2006 referring to this matter makes no claim the authorities have shown any interest in his wife. I do not accept that they would not have done so had they intercepted material concerning Falun Gong mailed to his wife. I conclude, therefore, that such material was not sent to her and that this claim also is false. It follows that there is no chance of the applicant suffering on return to China for this reason.
In conclusion, the Tribunal reiterated its finding that the applicant’s claims were concocted and found that there was no real chance that the applicant will suffer harm amounting to persecution should be return to China in the foreseeable future.
Grounds of applicant’s claim
The applicant’s grounds as set out in his further amended application for judicial review are as follows:
1.The Tribunal failed to deal with an essential element or integer of the applicant’s claims.
Particulars
(a)Namely, his sur place claim in connection with attending Falun Gong demonstrations whilst in Australia in light of his (the applicant’s) awareness of the Chen Yonglin case. This claim was raised by the applicant and was before the Tribunal and reproduced, in relevant parts, in the Tribunal’s reasons for decision. (e.g. CB 45, 98-101, 114-120, 137-138, 228)
2.The Tribunal failed to accord the applicant procedural fairness.
Particulars
(a)The Tribunal failed to observe the procedure prescribed by s.424a of the Act insofar as it failed to provide the applicant with particulars of the information (“the information”) it considered would be the reason, or a part of the reason, for affirming the decision that is under review in the manner prescribed by the Act.
(b) The information was that the applicant’s claim to have sent anti-Communist party material lacked credibility in circumstances where he made no claim that the authorities had shown any interest in his wife.
(c)The claim arising from the applicant’s assertion that he had sent materials to his wife was a sur place claim and formed an independent basis foundation (sic) for demonstrating eligibility for a protection visa.
3.The Tribunal constructively failed to exercise its jurisdiction by applying the wrong test, misconceiving its duty, failing to apply itself to the real question to be decided or misunderstanding the nature of the opinion it was required to form pursuant to ss36 and 91r of the Act with respect to its consideration of “serious harm”: CB 246
Particulars
The Tribunal’s (sic) found that the Chinese authorities would not be favourably impressed by the allegations published in Australian news articles and was thereby required to consider whether this could constitute serious harm.
4.The Tribunal failed to take into account relevant material.
Particulars
(a)In reaching its conclusions concerning the sur place claim arising from having sent anti-Communist party material to his wife in China and having had that material intercepted by the Chinese authorities, the Tribunal failed to take into account the material in which the applicant claimed his wife had been questioned by the Chinese authorities: CB 105-106, 246.
Ground One
The applicant claims firstly that the Tribunal failed to deal with a discrete element of his claims, being his claimed attendance at Falun Gong demonstrations while in Australia, in the context of the evidence from the former Chinese diplomat Chen Yonglin to the effect that informants provided “Chinese consulates with personal information about overseas Falun Gong practitioners and Falun Gong group activities.”
There can be no doubt that the claim was raised. In the personal statement accompanying the applicant’s protection visa application, the applicant stated explicitly that he had:
…participated in some activities organised by Falungong such as the activities in front of the Chinese Consulate General in Melbourne at 9:00am, 25 April and the protest organised by Falungong in front of the government building in the afternoon of 25 May.
The applicant went on to say in his personal statement that he believed it to be true that Chinese spies were operating in Australia and said:
I have sympathised with Falungong practitioners and helped them, which resulted in me being persecuted and expelled from a government position. Now I even participated in Falungong in Australia. If I return to China and my activities are to be discovered, I will be facing another imprisonment and is (sic) likely to be persecuted to death at any time.
The applicant says that the Tribunal was required to address the claim:
that the applicant had engaged in overtly political acts and consequently feared being returned to China. The Chen Yonglin material ought to have been considered in the Tribunal’s assessment of whether the applicant’s fear of persecution was well-founded.
The applicant says that, by inference, the Tribunal found as a matter of fact that the applicant had participated in the demonstrations.
That contention was based on the Tribunal noting the applicant’s claim that his brother had taken him to museums and sight seeing and Falun Gong demonstrations in the context of the Tribunal rejecting the applicant’s explanation for the delay in lodging his protection visa application. That explanation was that his brother was too busy to make enquiries about lodging a protection visa application. I do not accept that noting the applicant’s claims in this regard amounts to a finding, even implicitly, that the applicant did attend the Falun Gong demonstrations. The Tribunal, in that part of its reasoning, was simply rejecting the applicant’s explanation for his delay.
In any event, the applicant submits that whether the Tribunal made a finding that the applicant had attended the demonstrations or not, it nevertheless failed to deal with the claim.
The first respondent submits that the Tribunal did consider the sur place political claim because it set out the relevant claims in its reasons for decision under the heading claims and evidence. It is true that in its reasons for decision the Tribunal set out large tracts of the documents lodged by the applicant with the Minister and the Tribunal. However, the wholesale reproduction of submissions and evidence in the decision is not in itself an indication that the Tribunal has considered that material in the required sense.
In Tickner v Chapman & Ors (1995) 57 FCR 451, the Full Court of the Federal Court elucidated what it means to consider the material placed before a decision maker. Black CJ said the following, at page 462:
The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed, as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
In the same judgment, Keifel J said, at page 495:
To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate.
There is nothing in the Tribunal’s reasons for decision in this case which indicate that it embarked on the process of actually fixing its mind upon the applicant’s claims to have participated in demonstrations in Australia.
Nevertheless, the first respondent says that the Tribunal’s consideration of the claims about the applicant’s participations in demonstrations in Australia, in view of the Chen Yonglin evidence, was subsumed in findings of greater generality. The Tribunal said at the outset of its findings and reasons that it did not accept the truth of the applicant’s claims. In the overall context of the Tribunal’s reasons, this statement is too general to be indicative of a specific consideration of the claim to have attended demonstrations in Australia.
The Tribunal also said that it was not convinced that the applicant was a Falun Gong practitioner. The first respondent pointed out that the Tribunal noted that the applicant had provided no supporting evidence from Falun Gong authorities in Australia and that the applicant had not joined a practice group in Australia.
However, on a fair reading of the decision, these observations of the Tribunal were directed to whether the applicant was a Falun Gong practitioner, not to whether he was a person who had attended some demonstrations as a Falun Gong sympathiser. Indeed, the paragraph of the Tribunal’s reasons for decision dealing with these matters begins with the sentence, “I am not convinced that the applicant is a Falun Gong practitioner.” The Tribunal was expressly dealing in that paragraph with whether the applicant was a Falun Gong practitioner, not with the question of whether he may have attended some demonstrations as a sympathiser.
The first respondent then says that the Tribunal dealt with all of the sur place claim by specifically addressing the article in the Epoch Times and by concluding that the Chinese authorities would know that the claims in the article were untrue. The publication of the Epoch Times article in an Australian newspaper on 6 January 2006 in itself gave rise to a sur place claim and the Tribunal rejected that claim expressly. However, the Epoch Times article did not say anything about the applicant’s participation in demonstrations in Australia. Accordingly, by addressing the issue of the Epoch Times article, the Tribunal did not also address the applicant’s claims about participating in demonstrations.
The first respondent says further that the applicant’s awareness of the Chen Yonglin case is not an integer of the claim but simply another piece of evidence relating to his sur place claim. However, the applicant’s awareness of the Chen Yonglin case was not of itself a claim put by the applicant. His claim was that he had attended demonstrations in Australia as a sympathiser of Falun Gong and, because he believed that Chen Yonglin had been correct in stating that there were spies reporting back to China about Falun Gong activities such as demonstrations, he feared that he would be persecuted if he returned to China. That was clearly a discrete claim and, in my view, the Tribunal did not deal with it. The Tribunal’s conclusions that the applicant was not a Falun Gong practitioner, would not suffer persecution because of the Epoch Times article and did not send Falun Gong materials to his wife through the post do not constitute findings of greater generality that contain a consideration of the discrete claim to have attended demonstrations in Australia.
A failure to consider a claim raised expressly or implicitly on the material before the Tribunal is a clear jurisdictional error: Htun v Minister for Immigration, Multicultural & Indigenous Affairs (2001) 194 ALR 244 at 13; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27; Minister for Immigration, Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 at [81]-[83]. Such an error was made by the Tribunal in this case.
Ground Two
The applicant contends that the Tribunal failed to comply with s.424a of the Act in that it failed to give the applicant particulars in writing of certain information. That information was said to be the Tribunal’s hypothesis that if certain material had been sent by the applicant to his wife then his wife would have come to the attention of the authorities. The applicant said that the Tribunal’s hypothesis was information of the sort that was identified by the Full Federal Court in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 206 ALR 471. Additionally, the applicant contends that the information was the reason or part of the reason for the Tribunal’s decision.
The first respondent says that the Tribunal simply did not accept the claim that the applicant had sent material to his wife in China. That is so. However, as discussed below in relation to ground four, that finding was based in part on a mistaken belief by the Tribunal that the applicant had not claimed that the authorities had shown any interest in his wife.
Be that as it may, the first respondent then says that the Tribunal’s hypothesis was not information within the meaning of s.424a of the Act. In VAF, Finn and Stone JJ set out at [24] what constitutes information within the meaning of the Act:
…there is now a considerable body of case law concerned with the compass of the term "information" in its s 424A(1) setting. The following propositions emerge from it:
(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74;
(ii) the word "information" in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] – [22]; and
(iii) the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; 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: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].
Clearly, it has been authoritatively determined that information for the purposes of s.424 a of the Act does not include the Tribunal’s subjective thought processes or appraisals. “Information” is “knowledge…communicated to or received by the Tribunal”.
In the present case, the finding that the applicant’s wife would have come to the attention of the authorities if the applicant had sent materials to her is a matter that ought properly to have been supported by information. Otherwise, it would be a matter of mere conjecture.
In any event, the information on which the Tribunal’s hypothesis was based was in fact provided by the applicant to the Tribunal in his statutory declaration made on 31 January 2006. At paragraph 22 of that statutory declaration, the applicant said that he had sent his wife some articles and said, “I am aware that this could cause her some difficulties”. At paragraph 23, he said that, “since I have been in detention my apartment has been raided and my wife questioned by authorities”.
Accordingly, the hypothesis which the applicant relies upon was in fact information that the applicant himself gave for the purposes of the application. As such, pursuant to in s.424a(3)(b) of the Act, the Tribunal did not need to give the applicant particulars of the information.
Having said that, it is not necessary to decide whether the information was the reason or part of the reason for the Tribunal’s decision. However, for completeness, I note that the first respondent submits that the Tribunal’s finding in relation to the materials claimed to have been sent by the applicant to his wife was a separate and parallel finding and that the decision could be upheld on the basis of the Tribunal’s other findings, namely, that the applicant was not a Falun Gong practitioner, and that the publication of the article in the Epoch Times would not cause the applicant to face persecution. The first respondent relies upon VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965.
However, the Tribunal’s findings about the applicant not being a Falun Gong practitioner and the article in the Epoch Times not being likely to cause the applicant to face persecution are not separate and parallel findings sufficient to sustain the decision. Each of the sur place claims, namely being a Falun Gong practitioner, attending Falun Gong demonstrations, the article in the Epoch Times and the sending of the articles to the applicant’s wife, was separately and individually capable of creating a well founded fear of persecution.
In summary, however, ground two is not made out because the applicant himself provided to the Tribunal the information which he says is the hypothesis of which the Tribunal failed to inform him.
Ground Three
At the hearing before this court, Counsel for the applicant said that ground three was no longer pressed, although it was not formally withdrawn. I am unable to detect any basis upon which ground three could be made out.
Ground Four
The applicant contends that the Tribunal failed to take into account relevant material, being the material in which the applicant claimed his wife had been questioned by the Chinese authorities.
The applicant claimed at paragraph 22 of his statutory declaration to have a well founded fear of persecution by reason of having sent to his wife in China:
…interesting articles about corruption and Falun Gong and other articles…[including] an article called the ‘9 Comments on the Chinese Communist Party’.
The Tribunal did not accept that claim for two reasons. Firstly, the Tribunal did not accept that the applicant was a Falun Gong believer and practitioner. The Tribunal concluded from that point that there was no reason that the applicant would place his wife at serious risk of persecution by sending her material that would attract the unfavourable attention of the Chinese authorities. The Tribunal’s second reason for not believing that the applicant had sent his wife Falun Gong materials was that the applicant’s submission dated 24 January 2006 and faxed to the Tribunal on 31 January 2006 made no claim that the authorities had shown any interest in the applicant’s wife. The Tribunal said:
I do not accept that they would not have done so if they had intercepted material concerning Falun Gong mailed to his wife. I conclude, therefore, that such material was not sent to her and that this claim is also false.
It is common ground that the applicant’s submission faxed to the Tribunal on 31 January 2006 did not say that the authorities had shown any interest in the applicant’s wife. However, it is also common ground that the applicant’s statutory declaration made on 31 January 2006 did state at paragraph 23 that the applicant’s apartment had been raided and his wife questioned by authorities in the context of the applicant claiming that his mail had been monitored and certain letters that he had sent to his wife had not been received.
Accordingly, it is clear that the Tribunal based its conclusion that the applicant had not sent materials to his wife in part on the mistaken view that the applicant had not claimed that the authorities had shown any interest in his wife. It is noteworthy that the Tribunal said that the claim that the applicant had sent materials to his wife was made through his adviser. In fact, that claim was made in more detail and with additional claims in the applicant’s statutory declaration.
The first respondent says that this is a mere error of fact and is therefore within jurisdiction. The applicant says that it reflects a failure to take into account an integer of the claim and reflects a misunderstanding of the claim.
In my view, the Tribunal did clearly misunderstand the aspect of the applicant’s claims concerning the material sent to his wife.
The Tribunal did not understand that the applicant had expressly claimed that his apartment had been raided and his wife had been questioned. These events, if accepted, could clearly have given rise to a well founded fear of persecution.
Moreover, the Tribunal characterised the materials that the applicant claimed to have sent to his wife as Falun Gong materials. The articles that the applicant said in his statutory declaration at paragraph 22 that he had sent to his wife were not only Falun Gong articles but also articles about corruption and an article called “9 Comments on the Chinese Communist Party.” These latter documents cannot properly be regarded as Falun Gong materials. Accordingly, it is clear that the Tribunal has failed to consider an aspect of the applicant’s claim.
The first respondent argues that the Tribunal made an anterior and discrete finding that the applicant was not a Falun Gong practitioner and an umbrella finding in relation to the sur place claims. The first respondent says that, on that basis, the decision should be upheld. However, as discussed above, the finding that the applicant was not a Falun Gong practitioner does not answer the claim that he was a Falun Gong sympathiser who attended demonstrations or the claim that he sent to his wife materials regarding corruption and a commentary on the Communist Party of China. Similarly, the finding about the Epoch Times article and the finding about the sending of Falun Gong materials are not umbrella findings in relation to the sending of articles about corruption and the Communist Party.
Conclusion
In the circumstances, grounds one and four of the application are made out. Accordingly, there will be a declaration that the Tribunal’s decision is unlawful and orders in the nature of certiorari, prohibition and mandamus. The first respondent is to pay the applicant’s costs of the proceeding.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 13 October 2006
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