NBID v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FMCA 653
•30 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBID & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 653 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in failing to put certain issues to the Applicant, in refusing to hear oral evidence from witnesses, in failing to put concerns about authenticity of documents to Applicant – whether lack of procedural fairness – effect of s.422B Migration Act 1958. |
| Migration Act 1958, ss.91R, 414, 424A, 422B, 425 Migration Legislation Amendment Act (No 6) 2001 |
| Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829 Kioa v West (1985) 159 CLR 550 WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 |
| Applicant: | NBID & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2863 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 15 February 2005 |
| Last Date for Submissions: | 22 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Joseph |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondent: | Ms K. Morgan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Refugee Review Tribunal be joined as a party.
That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 30 June 2004.
That a writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the applicant’s application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2863 of 2004
| NBID & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
The applicants seek review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 30 June 2004 affirming a decision of a delegate of the respondent not to grant them protection visas. The applicants are mother and son who are nationals of the Peoples Republic of China. The applicant mother arrived in Australia on 14 September 2003. Her son had arrived here on a student visa at an earlier date. On 21 October 2003 the applicants lodged an application for protection visas. The application was refused and the applicants sought review by the Tribunal. The Tribunal held a hearing on 21 April 2004 which the applicant mother attended. The applicant son, who did not make any claims of his own, did not attend the hearing. The Tribunal affirmed the decision of the delegate. The applicants sought review in the Federal Court. The matter was transferred to this court.
The applicant mother (referred to hereafter as the applicant) claimed to have a well-founded fear of persecution because she was a Falun Gong practitioner. She claimed that she began practising Falun Gong in her home town in China in early 1998, eventually became an ‘assistant’ or instructor and held study and exercise groups in her home. She claimed that on 23 July 1999 (after Falun Gong was banned by the Chinese government) her home was raided by the PRC police (the PSB) and that Falun Gong material was seized. She claimed that her home was under surveillance and her telephone bugged for a period. The applicant claimed that on 25 October 1999 as a result of the denunciation of the Falun Gong movement as a cult in October 1999, she was arrested in Beijing and assaulted by the police, detained for several days at the one station and then in another police station and then detained in a detention centre. Thereafter she was ‘detained’ by the leaders of her former work unit and under 24 hour surveillance so that she could not practise Falun Gong. She claimed that her husband paid 1000 yuan and provided a guarantee so that she was released on 23 December 1999. During this detention she was mistreated.
She claimed that she was detained again for 26 days in March/April 2000 and that after demonstrating in Tiananmen Square in April 2000 she was detained again, beaten by the police and sentenced to forced labour for one year, illegally dismissed from the party and had her residence registration cancelled. She claimed that she was detained in the labour camp until 22 January 2001, during which time she was subject to mental and physical torture. She claimed that after she was released she was monitored by the authorities, particularly on and around certain significant dates, but that she had continued to give Falun Gong instruction at home. She also claimed that pressure was placed on her son and that her husband had to resign his position due to pressure on him. She submitted to the Department a number of facsimile copies of printed documents attesting to her arrest and detention on various occasions and to confiscation of illegal materials. She claimed that she had continued to practise Falun Gong in Australia and participated in Falun Gong protests and made speeches about her mistreatment in China that were broadcast on community radio and community television in Australia.
On 1 March 2004 the Tribunal wrote to the applicant inviting her to attend a hearing. It received a signed response from the applicant on 19 March 2004 in which she indicated that she wished to attend a hearing. She did not answer the question as to whether she wanted the Tribunal to take oral evidence from any witnesses or wanted to bring someone else with her to the hearing. She provided a written submission to the Tribunal elaborating on her. She attended a hearing on 21 April 2004.
A transcript of the Tribunal hearing is before the Court. It reveals that shortly before the start of the hearing the Tribunal was given a list of nine proposed witnesses who had accompanied the applicant to the hearing. The Tribunal member asked the applicant a number of questions about the proposed witnesses. She told the Tribunal that they practised Falun Gong in Sydney and included a group leader at whose home they practised. The Tribunal member suggested that because there were so many people (who were all entitled to say what they wished to say in support of the applicant) and as he did not have questions for everybody on the list he proposed to give them nine days to provide written statements in support of the applicant. The Tribunal requested that the witnesses indicate in such statements if they held any position or official status with the Falun Gong movement in Australia. The member also told the applicant that he had yet to decide how much weight to give to such evidence. He told the applicant that she also had time to submit any official letters from more senior or more eminent Falun Gong practitioners in Australia. He encouraged her to use the time he was giving her to get ‘the best support that you can on paper’. He pointed out to her that he may need more evidence of her Falun Gong involvement in Sydney than letters of support from people who merely attend the exercises in Sydney and that the extent of her dedication might be something on which an eminent person in the movement might comment.
The Tribunal member later told the applicant that it was more useful to have an oral witness who knew her back in China or was a witness to her experiences in China and that he would hear from such persons. However the potential witnesses were before the Tribunal to give evidence to the effect that the applicant was practising Falun Gong in Sydney. Towards the end of the hearing the Tribunal member told the applicant that he did not have any more questions ‘at this stage’ and:
“I won’t decide what decision to make until after I receive some of those statements. If I have any problems I will put them to you, okay”.
He also indicated that he would allow persons other than the nine people present to provide a statement. He asked that evidence be written rather than oral as he did not ‘necessarily’ have any questions to ask these people so did not need to examine them orally.
After the hearing the applicant provided letters of support about the applicant’s Falun Gong activities in Australia from a number of people who stated that they had heard from the applicant that she was involved in the practice of Falun Gong in China and believed her. None of these people claimed to have been involved with the applicant in Falun Gong activities in China and none provided evidence of her credentials as a past instructor in Falun Gong.
The Tribunal decision
The Tribunal accepted that the applicant and her son were nationals of the PRC, that the Falun Gong movement was banned in the PRC and that ‘unrepentant teachers and followers’ were liable to treatment in the PRC that could reasonably be characterised as persecution. It also accepted that the applicant mother had been involved with Falun Gong in Australia and had participated in numerous public demonstrations in Australia against the repression of Falun Gong in the PRC.
The Tribunal considered first the applicant’s claims about her punishment in China for reason of Falun Gong involvement. It found such claim to have been fabricated. It accepted plausible background information the applicant had provided about the situation for Falun Gong practitioners in the PRC (in particular that the PSB would raid a known practitioner’s home the day after Falun Gong was banned in July 1999). However it found that this in itself did not mean that such a thing happened to the applicant. It noted that the applicant provided the wrong date for the banning of the Falun Gong (20 July 1999 instead of 22 July 1999) and about events affecting herself, some of which were of concern to the Tribunal (such as claiming that the labelling of Falun Gong as a sect occurred on 25 October 1999) instead of 28 October 1999. It was of concern to the Tribunal that the applicant claimed she was arrested ‘on her way’ to the week-long protest in October 1999 in Beijing whilst the mass protests themselves proceeded in that city.
It also found the applicant’s account of her continuing practice of Falun Gong after her supposed release from gaol in 2001 not to be that of a person who was in fear of being caught. She claimed that she had continued to instruct practitioners in her home, yet she had not attracted the attention of the PSB despite her claims to be a suspected Falun Gong adherent who had posed a problem for the authorities in the past and despite her claim that she was released on condition she not be involved in Falun Gong activities. The applicant had said that she had to be extra careful on key Falun Gong dates but she had provided incorrect accounts of key Falun Gong dates and events to the Department. The Tribunal was of the view that she should easily have attracted the attention of the PSB on days other than the significant days. The Tribunal also noted that there were discrepancies between the claimed dates of detention in the documents provided by the applicant and the dates she provided in her evidence. One document stated she was found on the morning of 24 April 2000 in Tiananmen Square and detained. The Tribunal stated that she had claimed this happened on 23 April 2000.
The Tribunal had also found that the applicant had failed to explain satisfactorily the existence of a receipt for confiscated Falun Gong material. This was a document dated 2 November 1999 purporting to be an inventory of forbidden Falun Gong items ‘withheld’ by the PSB. The applicant claimed this was a receipt issued for illegal materials confiscated from her home. The Tribunal stated that it was “thus unable to accept as authentic the purported certificates provided by the applicant in support of her claims about arrest and detention in the PRC”.
The Tribunal continued:
The Tribunal asked itself if the documents were merely false evidence of true facts. In considering this, the Tribunal recalled the Applicant’s inconsistent evidence about the PSB not having enough evidence on which to charge her or bring her before a court. The Applicant’s case was particularly weak and confused on this point, for elsewhere she claimed she was arrested after her telephone was tapped; that she was arrested whilst protesting in Tiananmen Square in April 2000, long after clear anti-cult directives took effect on 22 July and 28 October 1999; and that the police seized a body of banned Falun Gong materials from her own family home. Also, the Applicant claimed she was released in January 2001 on strict conditions which she claims she regularly breached, even under conditions of close police surveillance, and still she was not re-detained. Then there is the evidence of the Applicant’s passport which in the claimed circumstances should never have been issued, and which was never cancelled. There is also the evidence of her legal departure from the PRC under her own identity at a time when she was supposedly subject to strict reporting conditions. The Tribunal does not accept the Applicant’s evidence of having been punished in the PRC for reasons of Falun Gong involvement. The Tribunal finds it has been fabricated.
The Tribunal went on to consider whether the applicant ‘was even a follower of Falun Gong’ in the PRC. It had regard to what it described as inaccurate information she had provided about the Falun Gong in her protection visa application. It found that her evidence in that application was inaccurate and inconsistent in many respects, particularly in relation to key dates and events she said were remembered and observed by all Falun Gong followers. Her inaccuracy led the Tribunal to the view that she was not observing key dates in the PRC. This supported the view that the applicant was not part of the Falun Gong community in that country. The Tribunal was of the view that the applicant had accumulated information or ‘knowledge’ about Falun Gong during her first month in Sydney prior to lodging her application. It found that her information at that time was not accurate or very detailed but that her ‘knowledge’ was evidently ‘greatly enlarged’ ‘by the time of the Tribunal hearing.
The Tribunal referred to the body of testimonials from other persons purporting to be adherents of Falun Gong. It accepted that the applicant had been spending a lot of time with the Falun Gong community in Australia. However the Tribunal concluded on all the evidence that the applicant had ‘embraced’ Falun Gong for the purposes of fashioning a ‘refugee’ case. The Tribunal accepted that she was very knowledgeable but found, partly on the basis of what it found to be the timing of her ‘conversion’, that she was not sincere. It noted that one testimonial provided information about the applicant which did not sit with the information she had provided about herself, and continued:
“Even putting aside such problems the testimonial submitted by the applicant’s friends attest at best to the good faith of the authors. They do not satisfy the Tribunal as to the good faith of the applicant, for the Tribunal is entirely confident that the applicant had nothing to do with the Falun Gong before she came to Australia. The Tribunal does not accept as authoritative the claims of those individuals who have said that after talking with the applicant they learned her long association with the Falun Gong back in the PRC. It is clear to the Tribunal that her ‘engagement’ with Falun Gong began when she was preparing her application for a protection visa.”
The Tribunal had regard to s.91R(3) of the Migration Act 1958 (C’th) and concluded that it was ‘confident’ that soon after arriving in Australia the applicant manufactured a link with the Falun Gong community solely for the purpose of creating and strengthening a claim to be a refugee. It concluded that given the speed of lodgement of the application which included a number of documents the Tribunal had discounted as ‘fakes’ it was confident that the applicant’s pretended embrace of Falun Gong culture was being prepared with help from others even before she came to Australia and was ‘thus very much premeditated’. The Tribunal stated that it was ‘not at all equivocal’ in this finding and was therefore bound by s.91R(3) of the Migration Act 1958 to ignore the applicant’s Falun Gong affiliations in Australia.
The Tribunal recognised that the applicant had made a number of public appearances in Australia in defence of Falun Gong, but noted that she had never done so as a leader because she was not a leader here and, in the Tribunal’s view, never was one in the PRC either.
It considered whether (independently of its findings in relation to s.91R) the applicant’s activities in Australia could attract trouble for her in the event of return to the PRC. It took into account what it described as the ‘careful suppression of names and identities’ by the Falun Gong community in Australia and also evidence that the PRC authorities focused their attention on leaders of activities within the PRC. It stated that it could find no evidence to suggest that the applicant would face persecution in the PRC merely for having associated with Falun Gong adherents in Australia.
In conclusion the Tribunal was not satisfied that the applicants faced a real chance of Convention-related persecution in the PRC and found that they were not refugees.
This application
The applicants sought review of the Tribunal decision by application filed in the Federal Court on 9 July 2004. The matter was transferred to this court. The applicants rely on an amended application filed on 16 December 2004. The grounds in the amended application are first that the Tribunal fell into jurisdictional error in that the applicant was denied procedural fairness on seven bases and secondly, that the Tribunal failed to exercise the jurisdiction conferred on it by the Migration Act 1958. The contention that the applicant was denied procedural fairness is said to arise out of the Tribunal’s failure to put to the applicant a number of issues as discussed below.
The essence of the applicant’s contentions as clarified in written and oral submissions and post hearing written submissions is that the Tribunal erred in failing to put to the applicant a number of issues: in particular that she had manufactured a sur place claim (in the sense that the Tribunal concluded that she had ‘embraced’ Falun Gong in Australia for the purpose of fashioning a refugee case within the meaning of s.91R of the Migration Act 1958 (C’th)): that it also erred not hearing from the witnesses and in failing to put to her concerns that it had with written statement from witnesses provided after the Tribunal hearing; that it erred in failing to give the applicant an opportunity to give evidence and present arguments relating to the genuineness of certificates relating to her arrest and detention in the Peoples Republic of China or to put to her the issue in relation to fabrication of such documents; that it erred in failing to put to the applicant that she had no reason to fear persecution by reason of her activities in Australia due to its view of the evidence; that it found that the applicant’s legal departure from China was inconsistent with her being subject to strict reporting requirements when it never put to her that she was subject to strict reporting requirements; and that it found the applicant’s evidence was inaccurate and inconsistent in many respects without putting any of the alleged inconsistencies or inaccuracies to the applicant for comment.
The applicant contended first that the Tribunal was obliged as a matter of procedural fairness to put its view that the applicant had embraced Falun Gong for the purposes of fashioning a ‘refugee’ case and ‘was seeking to make a fraud on the Minister’ to the applicant. In written submissions reliance was placed on what was said by the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829 at [22]. In the passage relied upon by the applicant Gleeson CJ, Gummow and Heydon JJ were in fact referring to the statement of principle by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 59-592) which is as follows:
Where the exercise of a statutory power attracts the requirement for procedural fairness, the person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, the decision-maker is not obliged to expose his or her mental processes for provision or views to comment before making the decision in question.
It was contended that the present case fell within the qualifications to the general rule that the Tribunal is not obliged to expose his or her mental processes or reasoning to the applicant for comment. It was contended that there was more than a simple failure by the Tribunal to expose one aspect of its reasoning processes to the applicant for comment in the circumstances of what occurred in the Tribunal hearing.
In the amended application it was contended that the failure to put this issue to the applicant had occurred in circumstances where the Tribunal had by its questioning and conduct at the hearing created a ‘legitimate expectation’ in the applicant that the Tribunal would put challenging questions to her, that her participation in Falun Gong activities in Australia would be taken into account; that the Tribunal accepted that there was strong evidence of her involvement in the Falun Gong movement in Australia which the Tribunal could not dismiss; that the Tribunal would consider the applicant’s involvement in Falun Gong in Australia and the consequences that it could have for the future; and that the Tribunal accepted that the applicant’s reasons for not being an ‘instructor’ in Falun Gong in Australia seemed realistic.
In subsequent submissions the basis for the claimed obligation on the Tribunal to put this and other matters to the applicant was framed in the alternative, as a breach of procedural fairness or, consistent with the approach of the High Court in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62 per McHugh, Gummow, Callinan and Heydon JJ a failure to comply with the duty imposed by s.425(1) of the Migration Act 1958 (C’th) to hear from the applicant. As pointed out by their Honours at [32] in Applicant NAFF of 2002 such a failure would constitute a failure to complete the review process and a failure by the Tribunal to comply with the duty imposed by s.414(1) to conduct the review.
Section 425 Migration Act and Procedural Fairness
Section 425 of the Migration Act 1958 is as follows:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Underlying the applicant’s claim was the statement by the Tribunal member towards the end of the Tribunal hearing after the member had stated that he did not have any more questions ‘at this stage’:
I won’t decide what decision to make until after I receive some of those statements. If I have any problems I will put them to you – ok.
It was contended that this statement taken together with all of the other circumstances and what occurred in the Tribunal hearing was such as to oblige the Tribunal to raise critical issues of concern with the applicant. It was said to be relevant that the Tribunal made adverse credibility findings in relation to the applicant and a finding of fraud (in relation to the applicant manufacturing the link with the Falun Gong community solely for the purpose of creating and strengthening a claim to be a refugee under the Refugees Convention) which were not based on any positive evidence but rather on inaccuracies and inconsistencies in the information the applicant provided about the Falun Gong in her protection visa application in relation to key dates and events (as set out above), the fact that the applicant lodged her application for protection visa very soon after arriving in Australia and that she had provided documents in connection with her application which the Tribunal ‘discounted as fakes’. The Tribunal also found that the testimonials submitted by the applicant after the hearing did not satisfy it as to the ‘good faith’ of the applicant, as it was entirely confident that the applicant had nothing to do with the Falun Gong before she came to Australia. It did not accept as authoritative the claims in the testimonials from individuals who said that after talking with the applicant they learned of her long association with Falun Gong in the Peoples Republic of China.
In such circumstances it was contended for the applicant that the Tribunal erred in failing to put to the applicant its concerns about the shortcomings of the testimonials, or to question the applicant generally or the authors of the testimonials concerning their statements (particularly in the context of the Tribunal finding that at least one testimonial provided information about the applicant that did not sit with the information she provided about herself) and that more generally the Tribunal was obliged to put to the applicant for comment the allegation or conclusion that she had ‘embraced’ Falun Gong in Australia for the purposes of fashioning a refugee case within the meaning of s.91R of the Act. It was said that the Tribunal had created a legitimate expectation in the applicant at her hearing that such matters would be raised with her and that she would be given an opportunity to comment.
It is important to note that the applicant’s case is not presented merely on the basis of the so-called qualifications in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 but on the basis that the Tribunal had specifically undertaken to put problems to the applicant and had not done so. It is claimed that the Tribunal failed to afford the applicant procedural fairness or to provide the opportunity required under s.425 of the Act for the applicant to give evidence and present arguments.
The claim was framed primarily as a claim of a denial of procedural fairness. While the grounds in the amended application contend that the Tribunal failed to put issues to the applicant in circumstances where it had created a legitimate expectation at the Tribunal hearing, this is not a case in which it is necessary to consider further the operation of the notion of ‘legitimate expectations’. As was in pointed out in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 and Applicant NAFF of 2002 the issue of legitimate expectation arising from a representation may be something of a distraction. As Gleeson CJ stated in Lam at [34]:
“… It is clear that the content of the requirement of fairness may be affected by what is said or done during the process of decision making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness the creation of an expectation may bear upon the practical content of that obligation… but it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.”
Further, as Kirby J stated in Applicant NAFF of 2002 at [69]:
If the law requires a particular course to be followed, such as was the case in the present proceedings, the true legal issue is not, or is not only, whether the person adversely affected by a decision has had his or her legitimate expectations disappointed. That maybe a consequence of the departure from the legal standard; but it is not the invalidating cause. The failure to observe proper procedures itself amounts to a legal defect in the performance of the task conferred by law as the law requires. In this sense, the invalidating element is not the disappointment but the anterior failure to conform to the law.
In this instance the Tribunal made a number of statements during the hearing, none of which is of itself is conclusive but which, taken together reinforce the impression that when the Tribunal stated that if it had any problems it would put them to the applicant, it was undertaking that it would raise with the applicant not only any specific shortcomings in the witness statements but also more generally in relation to the requirements of s.91R(3) of the Migration Act 1958 (as this was essentially the issue which the applicant told the Tribunal would be addressed by the statements i.e. her involvement in Falun Gong in Australia).
Section 91R(3) is as follows:
For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
It is the case that the Tribunal drew the attention of the applicant and her adviser to the existence of what it described as sections in the Migration Act 1958 dealing with activities undertaken in Australia ‘that are specifically designed to get refugee status’ and that immediately after the Tribunal discussed with the applicant the time it would allow for further statements and written submissions it stated:
“See what’s happening, you know, or what you’re doing here is always going to be relevant to some degree in your case”.
However, in addition to the statement about putting problems to the applicant, early in the Tribunal hearing the Tribunal indicated to the applicant that it would put challenging questions to her, that it may refer to the primary decision but that “doesn’t mean that I am following it in any way”, that the Tribunal’s mind was still open, that when it received information from the proposed witnesses it would look at the information without prejudice and that it would still have to decide what it thought and how much weight to give to different people’s evidence and that:
Now, I don’t want to prejudice this case but it can end up being neither here nor there, of no importance whatsoever, if someone who goes to the exercises in Chinatown brings along somebody who also goes to the exercises in Chinatown or Ashfield, okay. I need more evidence of involvement in Falun Gong, I may need more evidence of Falun Gong involvement in Sydney than that. I may and I may not.
The Tribunal told the applicant that it was not only going to take a critical look at her activities and the consequences back in China but also, no matter what emerged from that, to consider her involvement in Australia and what consequences it would have for the future and that:
“There’s certainly evidence of your involvement with the Falun Gong movement in Australia. There’s strong evidence of a degree of involvement that I couldn’t dismiss. And I use my words carefully, a degree of involvement, whatever that is. And there’s other evidence of activities and consequences in China”.
The Tribunal member assured the applicant that no matter how tough it became with questions about what happened in China she should:
“be assured that I am aware of all the evidence of your involvement in the Falun Gong since you’ve come here. And that if I’m being tough about one area of your questions it doesn’t mean that your case has been lost”.
In discussing the applicant’s practice of Falun Gong in Australia the Tribunal also remarked that her explanation for not being an ‘instructor’ in Falun Gong in Australia (that the instructors were established already) seemed ‘realistic’ (despite the fact that she had claimed to be an instructor in China for about 1½ years). Immediately thereafter the Tribunal referred to the sections in the Migration Act 1958 dealing with activities undertaken in Australia ‘specifically designed to get refugee status’ while discussing the matter with the applicant’s adviser. However it then stated:
But I’m very cautious about invoking those. I don’t – particularly if someone has a spiritual search or a various, if somebody has a spiritual characteristic to them, then it might be very hard for me to – it might be very unreasonable of me to assume that these are activities designed only to get refugee status.
Adviser: No, not for her case
The Tribunal: So I’ll be very fair in my thinking on that one.
It is in the context of such statements and the conduct of the hearing generally that the Tribunal, when confronted with a number of potential witnesses about whom he had not been advised in advance, (one of who the applicant described as a group leader) gave the applicant the opportunity to provide written statements from such people, as well as any official letters from more senior or more eminent Falun Gong practitioners in Australia. After raising a number of issues about the applicant’s claims about what had occurred to her in China it then made the statement quoted above that the Tribunal would not decide what decision to make until after receiving some of the statements and “If I have any problems I will put them to you”.
While this case is not on all fours with what occurred in Applicant NAFF of 2002 (in that in that case a Tribunal member stated to an applicant that, given there were some inconsistencies “I will have to write to you about those” and indicated that the member would write in the next couple of days and the applicant would have 21 days in which to respond and put any more information to the Tribunal) I am satisfied that in circumstances where the Tribunal provided the applicant with the numerous reassurances that it gave in the course of the hearing it was in fact indicating if it had any problems, at least with the evidence of the applicant (including the testimonials) in relation to her activities in Australia, it would put them to her and allow her an opportunity to comment. It did not do so, but proceeded to make a decision which was adverse to the applicant, not only in that it did not find the testimonials supported the good faith of the applicant but also more generally in concluding that soon after arriving in Australia the applicant manufactured a link with the Falun Gong community solely for the purpose of creating and strengthening a claim to be a refugee under the Convention.
The Tribunal has a duty under s.414(1) of the Act to review the delegate’s decision. As McHugh, Gummow, Callinan and Heydon JJ stated in Applicant NAFF at [27]:
One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s.425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that if the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be pre-emptorily concluded by the making of a decision before that direction was complied with or withdrawn.
In this instance consistent with the approach taken in Applicant NAFF it can be inferred from the conduct of the Tribunal hearing, in particular the Tribunal statement in relation to putting problems to the applicant, that it regarded the future evidence the applicant would provide about her involvement in Falun Gong in Australia as having potential significance in the review. It can also be inferred that the Tribunal was of the view that fairness should be accorded to the applicant by giving her potential witnesses an opportunity to put information before the Tribunal that this could not, practically speaking, occur in the course of the Tribunal hearing and so that as in Applicant NAFF (at [30]), the process of review involving the participation of the applicant should not be brought to a close. It can also be inferred that the Tribunal member decided that a ‘fair technique’ by which to take the matter forward was to enable the applicant to put further information before the Tribunal in relation to her involvement in Falun Gong in Australia and then for any ‘problems’ (and it must be inferred that this means anything which would lead the Tribunal to make an adverse decision in relation to that aspect of the applicant’s evidence or the issues to which it was relevant) would be put to the applicant for comment.
Consistent with the reasoning in Applicant NAFF of 2002 it can hence be said that the Tribunal was indicating that the purposes of the review had not been completely fulfilled by the information provided by the applicant prior to the time of the hearing or by the oral evidence given by the applicant at the hearing conducted on 21 April 2004. The Tribunal was in effect indicating that procedural fairness may require some further steps to be taken and that if the Tribunal was not satisfied by the material provided by the applicant, such steps would be taken by contacting the applicant so that difficulties could be addressed. In this way, while this case is not one in which the Tribunal was definitely obliged to contact the applicant (if it had no ‘problems’ clearly it would not need to have done so), the Tribunal must be taken to be indicating that, at least on a conditional basis, it may not have finished receiving the presentation of arguments which the applicant had been invited (in a letter to of 1 March 2004) to make pursuant to s.425(1) of the Act.
I am not persuaded that the fact that the Tribunal proceeded to make a decision without contacting the applicant was an indication that there were no ‘problems’. Clearly there were. First, the Tribunal found that the letters from witnesses did not establish her sincerity (putting on one side its concern with an inconsistency between one of the letters and the applicant’s evidence as the Tribunal itself put aside such problems). Secondly, and critically, the Tribunal found that the applicant had not satisfied it that she engaged in the conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee. It is notable that s.91R speaks of the applicant satisfying the Minister (and hence the Tribunal) in contrast to ss.65 and 36 which refer the Minister being satisfied as to criteria being satisfied and that Australia has protection obligations to the applicant under the Refugees Convention as amended by the Refugees Protocol.
In all the circumstances the Tribunal’s statement that it would not decide what the decision to make until after it received some of those statements and that if it had any problems it would put them to the applicant is a clear indication that if there were difficulties in the applicant meeting s.91R(3) of the Act then the review process would not be complete until the Tribunal had brought such problems to the attention of the applicant and given her an opportunity to comment. When there were such problems the review process was not complete until the steps which the Tribunal member thought ‘could remedy its defects’ had been carried out (see Applicant NAFF of 2002 at [32]). As in that case the failure to complete the review process was a failure to comply with the duty imposed by s.414(1) to conduct the review and the duty under s.425(1) to hear from the applicant. The Tribunal’s failure to complete the review process and to comply with s.425(1) was a failure to exercise the jurisdiction conferred on it by the Migration Act constituting a jurisdictional error.
In the alternative, if there was not a failure to comply with s.425(1) I am satisfied that having undertaken to raise ‘any problems’ with the applicant and then failing to put to her the allegation that she had embraced Falun Gong for the purposes of fashioning a refugee case within the meaning of s.91R of the Act and its associated concerns (not only with the inconsistency between one testimonial and what the applicant had told the Tribunal, but also that the testimonials did not satisfy the Tribunal as to the good faith or sincerity of the applicant in her involvement in Falun Gong in Australia) the Tribunal denied the applicant procedural fairness. The Tribunal member by his statements in the hearing foreshadowed that the Tribunal would let the applicant know about any problems. This must be so as to afford her the opportunity to put more information before the Tribunal and address such problems if she wished. When problems were apparent and this was not done and the decision was adverse, the failure to put such problems to the applicant was procedurally unfair. These problems were relevant and important to the outcome. Any sur place claim by the applicant failed because of her failure to satisfy the Tribunal as required by s.91R(3) of the Act. While it may be that the specific inconsistency between one testimonial and the applicant’s oral evidence was not relied on by the Tribunal and hence not relevant, the broader finding of the Tribunal in relation to s.91R(3) was based not only on inaccuracies in Falun Gong information provided in the initial protection visa application but also the finding that the applicant had provided documents the Tribunal regarded as ‘fakes’ (a matter to which I will return) as well as the applicant’s actions in Australia (and the lack of persuasiveness of the statements she provided from Australian Falun Gong practitioners). Notwithstanding that the authors of these statements were apparently available and indeed had been put forward as witnesses by the applicant at the hearing they were not required by the Tribunal for questioning and nor were any questions put to the applicant concerning these statements, in particular the statements that the applicant was a genuine practitioner of Falun Gong. The applicant was not told that the statements were relevant to her good faith or sincerity or indeed how the statements were deficient. The applicant did, as the Tribunal suggested that she do, address the issue her involvement in Falun Gong and provide details of her devotion whilst in Australia. In one sense it might be said that the Tribunal’s adverse findings against the applicant were made primarily on an entirely different basis in that it accepted her involvement with Falun Gong now but disbelieved her motive for joining the Falun Gong on her arrival in Australia. In those circumstances it is not surprising that the written statements she provided do not address the issue that she had orchestrated her involvement in Falun Gong to bolster her claim to protection visa as, apart from the very generally expressed reference to sections in the Act dealing with activities specifically designed to get refugee status, the Tribunal did not put to the applicant any concern that she had orchestrated her involvement in Falun Gong to bolster her claim for a protection visa. Had it done so the applicant, for example, could have insisted that such concerns be put directly to each of the witnesses provided by her so that their views on her level of knowledge of the Falun Gong upon her immediate arrival in Australia could be tested.
The Tribunal took upon itself a procedural fairness obligation to raise any problems which arose by reason of the witness statements with the applicant. To the extent that the Tribunal’s concern about the applicant’s ‘good faith’ arose from such statement and was not a concern of the Tribunal at the time of the hearing, the Tribunal ought at the least to have put those concerns to the applicant and allowed her to comment if necessary by a further hearing (Applicant NAFF). This is not a case in which there has been a simple failure by the Tribunal to expose one aspect of its reasoning process to the applicant for comment. In effect the Tribunal found that the applicant’s involvement in Falun Gong in Australia had arisen fraudulently but gave the applicant no opportunity to comment on this conclusion despite the obligation on the applicant under s.91R(3) to satisfy the Minister (or Tribunal). The Tribunal gave the applicant no indication in the hearing that there were any allegations or information which would lead it to conclude that her sur place claim was fraudulent. Rather it led the applicant to believe that it accepted her involvement with Falun Gong in Australia and would put to her any problems or matters of concern.
Counsel for the respondent raised a number of arguments taking issue with the contention that there was a lack of procedural fairness. It was suggested that the Tribunal’s failure to hear oral evidence from the applicant’s supporting witnesses was not a breach of procedural fairness (even on the principles in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 discussed below) because the Tribunal did not rely on that evidence as it did not address the two issues the Tribunal had alerted the applicant to (being supporting evidence of her claims in relation to persecution in the PRC before she came to Australia and supporting evidence of her involvement in Falun Gong in Australia from those in eminent leadership or instruction positions). Rather it was contended that the Tribunal rejected the applicant’s claims in relation to the PRC based on matters such as implausible, inconsistent and confused evidence and did not rely on the witness statements in relation to its findings under s.91R(3). However it is clear in the context of the Tribunal hearing that the applicant was encouraged to provide further evidence from the witnesses and indeed other witnesses or further submissions and that the Tribunal undertook to put problems to her, not simply in relation to what was addressed in the witness statements but more generally and that the Tribunal did in fact take the evidence she provided into account in relation to her activities in Australia if only to find that witness statements did not attest to the sincerity of the applicant, in considering whether she had met the requirements of s.91R(3). I am not persuaded that the respondent’s arguments in this respect mean that there was no lack of procedural fairness.
It was also contended that the applicant should fail in relation to a claim of because she could not demonstrate that any procedural fairness (particularly in relation to not putting to her the allegation that she had embraced Falun Gong for the purposes of fashioning a refugee case) would have led to any different result (Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [36] per Gleeson CJ). However, as in Applicant NAFF of 2002 at [34]:
The entitlement of the [applicant] to complain about the failure of the Tribunal to complete the review process does not depend on the tender of evidence that [s] he was misled or prejudiced.
In this instance, consistent with what was said in Applicant NAFF at [34], it would not have been possible for the applicant to file an affidavit stating what answers she would have given to particular questions without knowing what the questions would have been. While the Tribunal’s conclusions are apparent from its reasons for decision, the applicant could not anticipate precisely what material she would be asked to supply or how any material would relate to potential reasoning by the Tribunal, particularly in relation to its failure to be satisfied by her that she had engaged in conduct in Australia otherwise than for the purposes of strengthening her claim to be a refugee. (Also see Kirby J in Applicant NAFF at [72]-[76]). The applicant has established that she suffered a relevant unfairness in not being given the promised opportunity to comment or “to deal with relevant matters adverse to … her interests that the repository of the power proposes to take into account in deciding upon its exercise” (Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [140] citing Kioa v West (1985) 159 CLR 550 at 628 per Brennan J).
Absent s.422B of the Migration Act 1958 I am satisfied in the circumstances described above that there was a denial of procedural fairness constituting jurisdictional error. Section 422B(1) of the Migration Act 1958 (C’th) relevantly provides:
“This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”
The applicant’s initial written submissions made no mention of s.422B. A different counsel appeared for the applicant at the hearing. He acknowledged that section 422B was applicable in this instance. Each of the parties filed supplementary written submissions after the hearing addressing the operation of s.422B.
In WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 French J sitting as the Full Court of the Federal Court on appeal from this court, considered a failure by the Tribunal to put the basis for its rejection of the genuineness or authenticity of certain documents to the applicant for comment. His Honour concluded first that s.424A(1) did not apply as:
“The formation of a view about the evidence by the Tribunal is not ‘information’ of the kind contemplated in that section” (at [49]).
On that basis French J then considered whether the failure to invite comment ‘on the Tribunal’s conclusions in respect of the letters’ would amount to a failure to accord procedural fairness absent s.422B, finding that:
“where … there is a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then … procedural fairness would require an opportunity be given to the appellant to comment.”
(See WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 and WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188). The critical issue dealt with by French J was whether in these circumstances s.422B so confined the application of procedural fairness that it was not available. However he found that there was either a breach of s.425 that amounted to jurisdictional error or that relief in respect of a denial of procedural fairness was not excluded by s.422B on the basis that if s.425 was not applicable this aspect of the requirement of procedural fairness was not ‘dealt with’ by any of the provisions in Division 4 of Part 7 of the Migration Act 1958.
Similarly in this case the matters considered above are not dealt with by s.424A. The Tribunal’s views of the ‘problems’ with the applicant’s claims about her activities in Australia discussed above cannot be said to be ‘information’ within and subject to s.424A. As French J stated in WAJR v Minister for Immigration & Multicultural Affairs at [49] the formation of views about evidence by the Tribunal is not ‘information’. In WAJR the issue concerned the basis for rejection of the genuineness of certain documents. In this instance the question is the basis for the rejection of the genuineness of the applicant’s sur place claim but, similarly, such matter is outside the concept of ‘information’ in s.424A(1).
If section 425 is breached as discussed above then s.422B is not relevant. On the other hand if section 425 is not applicable, the circumstances which constitute a denial of procedural fairness on general law principles are not matters ‘dealt with’ by s.425 (for example if it is accepted that a denial of procedural fairness post-dated or occurred outside the context of the hearing and consisted of the Tribunal’s subsequent failure to put the ‘problems’ to the applicant for comment). In such circumstances consistent with the reasoning of French J in WAJR (which I am bound to follow) as neither ss.424A, 425 or any of the other provisions of Division 7 of Part 4 ‘dealt with’ this issue the requirements of procedural fairness would not be excluded by s.422.
Counsel for the respondent submitted that French J’s analysis was incorrect but conceded that was a decision of the appellate jurisdiction of the Federal Court, that decision was binding on this court.
‘Fake’ documents
The other main area in which the applicant alleged the Tribunal fell into jurisdictional error was that it found that the documents provided by the applicant to it were ‘fakes’ in circumstances where it was never put to the applicant that the Tribunal had concerns about the authenticity of the documents. This finding was relied on in relation to the findings about the applicant’s activities in China and in Australia.
The documents submitted by the applicant in support of her protection visa application were faxed copies of printed documents which the Tribunal described as ‘purporting’ to be certificates attesting to her arrest and detention on various occasions. There were in fact five documents. The first of these was a receipt for withheld articles from the branch of the Ninghe Branch Tianjin Municipal Public Security Bureau dated 2 November 1999. The next was a document of the Disciplinary Inspection Commission, Ninghe County Committee for the Chinese Communist Party dated 13 March 2000 being instructions on the handling of the applicant’s mistakes, suspending her from Communist Party membership for one year because of her involvement in Falun Gong. Next was a document headed Management Commission for Education Through Labour Decision for Education Through Labour dated 28 April 2000 which referred to the applicant’s detention in October 1999 and then stated that she had conducted illegal activities, stated that on the morning of 24 April 2000 she had been arrested, Falun Gong material was seized at her home, that she had maintained her position and that it had been decided to send her to education through labour for one year from ‘24 April 2000 to 23 April 2001’. The next document was a document of the Disciplinary Inspection Commission, Ninghe County Committee for the Chinese Communist Party, headed Instructions on Removing the Applicant’s Party Membership, dated 24 May 2000 referring to the applicant’s activities and to the fact that she had been sent to Education through Labour by the Public Security Authority and removing her party membership. The final document was dated 22 January 2001 and is headed Certificate of Dissolution of Education Through Labour, from the Banquiao Management Office for Education Through Labour, certifying that the applicant was now released after serving her term of Education through Labour ‘which commenced on 26 April 2000’. The delegate had rejected such documents, being unable to accept them as genuine without some independent verification, noting that they were poor quality copies and having regard to the high incidence of document fraud in the Peoples Republic of China and in view of inconsistencies in the applicant’s claims.
In the Tribunal hearing the Tribunal member commenced by stating that while he may refer to the primary decision ‘It doesn’t mean that I am following it in any way’. He advised the applicant that he had seen the documents and certificates she had submitted and that some concerns arose in relation to the documents so that he needed to ask her some more questions. The applicant outlined her history of detention in China, explaining some of the issues that had caused concern to the delegate (such as the fact that her work unit had closed down), referred to her detention in October and November 1999 and in March 2000 when she was not sent to a detention centre but sent to her former work unit where people who were laid off workers from the work unit supervised her and required her to do hard work. She claimed that on this occasion the authorities had evidence of printing of Falun Gong material and interrogated her as to whether or not she was connected.
The Tribunal asked the applicant about the evidence that was found in November 1999 (to which one of the documents related) and the applicant explained that while she was arrested in Bejing the authorities had searched her home in another part of China at a time when she was not there. The Tribunal also questioned her about her subsequent detention and her Falun Gong activities thereafter. Part of the questioning related specifically to the documents that she had provided in support of her claims. The Tribunal indicated that it would take her through comments made by the Immigration officer in relation to her case so that she could respond to them and stated that:
“He thinks – although he hasn’t done any got any expert advice – but he thinks that these statements about arrest and confiscation of your materials, these certificates could all be fakes so you know, what do you say to that?”
In response the applicant stated:
“I swear that we, as a practitioner for the truth, truthfulness, forbearance and kindness, we will not tell a lie.”
The Tribunal went on to say:
“Okay let me ask this question. Why did the police give you a receipt for illegal materials that they’ve confiscated from you? You’re not going to be able to get them back and they’re not materials that they’re ever going to want to return to you so you don’t have to present the receipt to get them back again. Okay. And you’re in Bejing and these things are confiscated in another city so why would they need to issue you with a receipt? And how does the receipt get to you from them if you are in another city at the time of the confiscation?”
Applicant:
“They ransacked my home when I was not there, when I was in detention. It seems like looted. My family members, especially my mother-in-law, they were very scared and whenever they see it, they hear the sound of the police car stop, they are trembling.”
Tribunal:
Yeah okay, that’s a detail, it’s not actually answering the question.
Applicant:
Because I was not home at the time so I didn’t know about that.
Tribunal:
You can’t explain?
Applicant:
They were giving the receipt and that’s what they’re normally supposed to do. It is official procedure. If the receipt was not given, that means they are stealing.
Tribunal:
Okay so they gave the receipt to your family. Is that right?
Applicant:
Yes, to prove that they are not robbing my home. Take example, if a robber comes to my home to rob, they are not giving the receipt.
Tribunal:
Okay note that, noted, noted. I have a concern of my own. Your passport was issued in October 2001.
The Tribunal then went on to deal with issues about the departure of the applicant from China.
In the Tribunal reasons for decision the Tribunal acknowledged that the applicant had submitted a number of documents which the primary decision-maker had dismissed as fraud for want of some independent verification. It stated that one of the documents purported to be a judicial decision in the applicant’s case dated 28 April 2000 stating that the applicant was found on the morning of 24 April 2000 in Tianamen Square and detained. The Tribunal stated that the applicant herself claimed that this happened on 23 April 2000. It seems that this is a reference to the applicant’s initial claims where she stated generally under the heading 23 April 2000 – 22 January 2001 that she was beaten in Tianamen Square, the scene was videotaped by white tourists and was attacked by the police and was sentenced to forced labour for a year, dismissed from the party and had her residence registration cancelled. It is notable however that in her written submission to the Tribunal she stated that on 23 April 2000 she and another went to Tianamen Square intending to protest and then went on to describe the events that occurred to her there including detention at one public security department branch for about three hours, then at another for about six hours, and then that people from her home area came and took her into custody and drove her back to the detention centre. It is possible that this explanation of the passage of time addresses the apparent inconsistency in dates. However it is notable that there is nothing to suggest that the Tribunal raised this alleged inconsistency with the applicant, either in the course of the Tribunal hearing or by a s.424A(1) written notice.
The Tribunal also had regard to the fact that one of the documents provided to the Department stated that the applicant’s April 2000 detention commenced on 26 April 2000 but the earlier document ordering that period of detention was dated on 28 April 2000. Again there is nothing to suggest that this issue was put to the applicant either in the hearing or by a s.424A(1) written invitation to comment, although she had provided an explanation about her detention initially being illegal.
Finally the Tribunal described the document that it said purported to be an inventory of forbidden Falun Gong items ‘withheld’ by the PSB and stated:
This supposedly attests to an inventory of damning evidence against her in the eyes of the PRC authorities, and yet the applicant claimed she has never gone to trial. Addressing this anomaly at the RRT hearing, the applicant said that the authorities never had anything serious enough against her because she refused to admit her association with the Falun Gong, but this inventory, added to her claimed public protests in April 2000 would suggest that the authorities had plenty of material to base sufficient charges to put her before a court. At the RRT hearing, the applicant claimed she was arrested in November 1999 with hard evidence of Falun Gong involvement. According to her evidence to DIMIA, however, she was already in custody at the time.
There are a number of points to make about this information which, again, was not put to the applicant by the Tribunal. The Tribunal did raise the question of the inventory of material seized in November 1999 in relation to which the applicant provided an explanation as set out above. However the discussion of whether or not the authorities had enough evidence to detain the applicant was in the context of addressing her claims to have been detained in March 2000 because the authorities had evidence of printed materials relating to Falun Gong and wished to interrogate her about those, but did not, as the Tribunal member appeared to appreciate, have any certainty that it was connected to her. Moreover the Tribunal statement that the material seized, added to her claimed public protests in April 2000 would suggest the authorities had plenty of material to put the applicant before the court is in fact consistent with her claim that in April 2000 she was arrested and sentenced by a court and the documentation to the effect that in April 2000 it was determined that she should be detained in Education Through Labour for one year.
However in the findings and reasons part of the Tribunal decision the Tribunal stated:
“As noted, there are discrepancies between detention dates in the documents provided by the applicant and the dates she provided in her written evidence. In addition, the applicant failed to explain satisfactorily the existence of the receipt for confiscated Falun Gong material. The Tribunal is thus not able to accept as authentic the purported certificates provided by the applicant in support of her claims about arrest and detention in the PRC.”
It is in this context that it was contended for the applicant that the Tribunal was under an obligation to put to the applicant the basis for rejection of the genuineness of these documents. As developed in oral and written submissions the applicant’s argument was put on two bases, consistent with the decision of French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624. As indicated above, it is not in dispute that as a decision of the Full Court of the Federal Court such decision is binding on this court (cf first instance decisions of single judges of the Federal Court such as NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 and Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590). Relevantly in WAJR French J was considering a failure by the Tribunal to put any basis upon which it might reject the authenticity of letters submitted by the applicant in support of his claims. In that instance the Tribunal had relied on matters such as the wording of the letters and similarity in their font and type face and had been unable to accept that they were credible or had any veracity and hence was unable to accept their genuineness. In WAJR, French J held that s.424A of the Act did not apply as the formation of a view about the evidence by the Tribunal was not ‘information’ of a type contemplated by that section.
Section 424A(1) may apply to the claimed inconsistencies in the information provided by the applicant to the Department as this was not information provided by the applicant for the purposes of the review application. No written invitation to comment was provided (cf SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and Minister for Immigration & Multicultural Affairs v Al-Shamry (2001) 110 FCR 27). This may of itself constitute jurisdictional error. SAAP was decided after the hearing and post-hearing submissions. However as I am satisfied that the decision is affected by jurisdictional error for other reasons it was not considered necessary to invite further written submissions on the effect of SAAP. Consistent with WAJR, as contended by the applicant the Tribunal’s formation of the view that the documents were ‘fakes’ is not ‘information’ of the kind contemplated by s.424A(1). In WAJR French J was of the view, consistent with the approach that had been taken by the Full Court of the Federal Court in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171, that it would amount to a jurisdictional error in such a case if the Tribunal did not give the applicant an opportunity to comment where there was an implication that the documents were concocted for the purposes of the application. Similarly, absent s.422B, there is a denial of procedural fairness in the circumstances of this case. The Tribunal went further than merely finding that it was not satisfied about the reliability or genuineness of the documents. It is clear from its description of the documents being discounted as ‘fakes’ and its findings that the applicant manufactured a link with Falun Gong that there is an implication that the documents were concocted for the purposes of the application (see WAJR at [56]).
In considering the construction of s.422B French J stressed that it stated that Division 4 of Part 7 was to be taken to be exhaustive of those aspects of the requirements of procedural fairness ‘in relation to the matters it deals with’. His Honour then considered whether the matter in question was dealt with by any of the provisions of Division 4 of Part 7. He had already found s.424A did not deal with the matter raised by the case and found that nor did any other provision, with the possible exception of s.425. Such reasoning again is directly applicable in this instance in relation to the formation of a view about the ‘concoction’ of the documents (at least insofar as s.424A is not applicable on SAAP principles). This is clearly so in relation to the basis for the findings about the alleged failure by the applicant to explain satisfactorily the existence of the receipt for confiscated Falun Gong material (which was not made apparent to her in the hearing).
In WAJR French J posited (at [58] – [59]) two alternative views of s.425. The first view was that the section did apply because the genuineness of the evidence was an issue raised by the Tribunal itself and on which the applicant was given no prior notice nor an opportunity to comment before the Tribunal made its decision. On this view the Tribunal’s failure to invite the applicant to make submissions on whether the letters relied upon were genuine or forgeries was found to be a failure to comply with s.425 amounting to jurisdictional error. In WAJR the Tribunal did conduct a hearing in which the applicant referred to his letters of support but it appears that the Tribunal did not raise its concerns about the genuineness of such documents. The alternative basis for the reasoning of French J in WAJR was that if s.425 did not apply to the question of whether the Tribunal was obliged to invite comment on an adverse conclusion not implicitly or explicitly an issue in the hearing, then it did not deal with the matter and the requirements of procedural fairness were not excluded in respect of it by s.422B (at [59]).
Turning then to the circumstances of this case, counsel for the applicant contended in relation to s.425 that the applicant was not provided with an opportunity to give evidence and present arguments relating to the genuineness of the certificates because they were not put in issue by the Tribunal. The only question put in relation to these documents was the allusion to the view of an Immigration officer. The question was answered and the Tribunal said nothing further on the matter. It was contended that such an indirect and cursory approach could not satisfy the requirements of s.425 if it applied. It was further contended that if a finding on a central issue in the proceedings, such as the authenticity of documents relating to arrest and detention, was to be made then the issue must be put fairly and squarely before the applicant as otherwise the nature of the proceedings would not allow the applicant to ‘give evidence and present arguments’ in relation to the issue.
Counsel for the respondent contended however that even on the reasoning adopted by French J in WAJR there was no breach of s.425 as the applicant was given an opportunity to comment and therefore had been invited to give evidence and present arguments relating to the genuineness of the documents.
In the context of a hearing where the Tribunal stated that it had concerns about the documents and needed to ask more questions and may refer to the primary decision but that did not mean that it was following it in any way, the limited questions that it in fact asked about the documents by reference to the views of the Immigration officer (simply that in the absence of expert advice he thought the statements and certificates could be fake and inviting her comment) did not in fact identify in any meaningful way (so as to enable the applicant to comment) the basis for the Tribunal’s concerns about the genuineness of the documents. This is apparent from the fact that, contrary to the approach taken by the delegate, the Tribunal did not rely upon the absence of independent verification or the prevalence of documentary fraud in the Peoples Republic of China in reaching its conclusions or indeed on the particular inconsistencies which the delegate identified (most of which were in fact subsequently addressed by the applicant). Rather the Tribunal relied on other factors such as the claimed inconsistencies in detention dates provided by the applicant and dates she provided in her written evidence (and it is notable in this respect that some of these claimed ‘discrepancies’ may in fact have been explicable) and the applicant’s claimed failure to explain satisfactorily the existence of the receipt for confiscated Falun Gong material. In this respect it is not clear whether there was some confusion in the mind of the Tribunal as to the issue of documents seized in November 1999 when the applicant was not physically present at home (which she explained) and the separate issue of the state of the evidence before the authorities at the time she was detained in March 2000 and indeed her claims about what occurred by way of sentencing after April 2000. Had these matters been put to the applicant she would have had the opportunity to clarify or at least address the concerns which the Tribunal relied on in finding that the purported certificates were ‘fakes’. In these circumstances, while the Tribunal did put to the applicant the delegate’s concerns, albeit in the context of pointing out that the delegate had not obtained any expert advice, at no time did the Tribunal put to the applicant its reasoning that the documents were concocted for the purposes of the application. The critical issue was not put fairly and squarely before the applicant by the course of questioning adopted by the Tribunal and on the reasoning in WAJR there has been a failure to comply with s.425.
In the alternative if s.425 does not apply, then I am satisfied that the Tribunal has failed to accord the applicant of procedural fairness which, according to WAJR, would not be excluded (at least in relation to those matters not ‘information’ in s.424A(1)). The Tribunal made a finding that the relevant documents had been fabricated. This finding amounted to an allegation of forgery on the part of the applicant. Fairness required that the applicant be given a proper opportunity of answering the allegation, not simply in the indirect and cursory manner adopted by the Tribunal, which cannot be said to have properly alerted her to any doubts it may have had and the basis for such doubts regarding the authenticity of the documents (see WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [53]-[56]).
Other grounds
These findings make it unnecessary to address the further bases on which it is contended that the Tribunal erred. However for the sake of completeness. I have considered the Tribunal findings based on the applicant’s association Falun Gong adherents in Australia. The Tribunal considered whether the applicant’s activities in Australia could attract trouble for her in the event of return to China. The Tribunal stated that it took into account first what it described as ‘the careful suppression of names and identities by the Falun Gong community in Australia and secondly evidence that the Chinese authorities focussed their attention on leaders of activities within the PRC (and the Tribunal was of the view that the applicant was never a leader in Australia or the PRC). The Tribunal stated that it could find no evidence to suggest that the applicant would face persecution in the PRC merely for having associated with Falun Gong adherents in Australia. It concluded that it was not satisfied that the applicant and her son faced a real chance of persecution in the PRC.
The applicant contended that the Tribunal erred in failing to put to the applicant that she had no reason to fear persecution on her return to China by reason of her activities in Australia due to its view that she had not appeared in Australia on behalf of Falun Gong as a leader; and the careful suppression of names and identities by the Falun Gong movement in Australia.
In relation to the first issue, the applicant herself told the Tribunal that she was not an instructor in Australia. It was not necessary for the Tribunal to put to the applicant its reliance on information she had provided to it.
It is apparent from the transcript of the Tribunal hearing that the Tribunal did not put to the applicant independent information referred to in the Tribunal decision to the effect that the Falun Gong community in Australia does not publish the identities of its leaders and activists in any form. The Tribunal is not obliged under s.424A(1) of the Migration Act 1958 to put independent country information to the applicant for comment, as it is within the exception in s.424A(3)(a) of the Act. (See Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264).
The issue of procedural fairness is more contentious. First, the Tribunal was not obliged to put to the applicant for comment its reasoning or thought processes in relation to its conclusion that it was not satisfied that she faced a real chance of Convention-related persecution in the PRC based on her activities in Australia. Such ultimate conclusion is not of the same nature as the ‘problems’ the Tribunal promised to the applicant in relation to her evidence on particular issues. The Tribunal is not obliged to put its tentative conclusions on the ultimate issue before it to an applicant for comment.
However the particular information in question (the ‘careful suppression of names and identities by the Falun Gong community in Australia’) appears to be the Tribunal’s assessment of the independent information that the Falun Gong community in Australia does not provide a list of officials nor ‘does it provide any membership details’. Such information is adverse information that was ‘credible, relevant and significant to the decision to be made’ (See Kioa v West (1985) 159 CLR 550 per Brennan J (as he then was)). It was relied on by the Tribunal in reaching its ultimate conclusion that despite the applicant’s involvement with Falun Gong in Australia, she would not face persecution in the PRC. The document containing the information in question (DIMIA Country Issues Brief, May 2003; DIMIA CIS file at CX80793) was one of the documents which the decision of the delegate listed as having been used to make the decision although no reference was made to this aspect of the material or the underlying issue in the delegate’s decision. It is apparent that the applicant was aware of the relevance of the issue of the situation of Falun Gong practitioners in Australia returning to the PRC. She had put information before the Tribunal, not only about mistreatment of Falun Gong practitioners in China but also about the particular situation of practitioners in Australia returning to PRC. In particular the Tribunal’s attention was drawn by Falun Dafa Association of NSW to a submission of April 2003 ‘confirming Falun Gong practitioners in Australia have a well-founded fear of persecution if deported to China.’
However while common law principles of procedural fairness may apply to such information, unlike the situation in WAJR, the disclosure of the information in question is a matter ‘dealt with’ in s.424A. It was information that is part of the reason for affirming the decision within s.424A(1) but is exempted from the s.424A(1) disclosure obligation by s.424A(3). In these circumstances, whatever view is taken of the scope of s.422B, it operates to relieve the Tribunal of any obligation to give the applicant an opportunity to deal with the DFAT information in question.
Finally there are two other particulars in the amended application not addressed specifically by the applicant. The first is that the Tribunal erred in finding the applicant’s legal departure from China inconsistent with her being subject to strict reporting requirements when it never put to her that she was subject to such requirements. There is no reference to such requirements in the applicant’s evidence.
Counsel for the respondent argued that if the Tribunal reference to ‘strict reporting conditions’ is an error (her evidence was that she was under police surveillance and subject to police harassment after her release from detention in January 2001) such a factual error does not amount to a jurisdictional error. In the absence of submissions from the applicant on this point I am not persuaded that the Tribunal erred in a manner constituting jurisdictional error in making this finding.
Finally the applicant contended generally that the Tribunal erred in finding that the applicant’s evidence was inaccurate or inconsistent in many respects without putting any of those alleged inconsistencies or inaccuracies to the applicant for comment. Proper resolution of this generally expressed ground would require detailed consideration of the application of s.424A(1) to the information provided by the applicant to the Department (see the recent decision of the High Court in SAAP). As other grounds of review are established as discussed above I do not consider it necessary to determine this matter on which the parties have not had an opportunity to address the court.
As jurisdictional error has been established the matter should be remitted to the Tribunal for reconsideration.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 30 June 2005.
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