SZAVD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1015

FEDERAL COURT OF AUSTRALIA

SZAVD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1015

SZAVD & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1472 of 2004

ALLSOP J
21 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1472 of 2004

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:

SZAVD
FIRST APPELLANT

SZAVE
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

21 JULY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   Within 7 days, the appellants file by facsimile to chambers and serve by providing a copy to Ms Clegg for the respondent, an amended notice of appeal.

2.   The Refugee Review Tribunal be joined as a party to the appeal.

3.   The respondent Minister send to chambers and provide to the appellants and Mr Braham a draft set of orders reflecting the consequences of what was decided today.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1472 of 2004

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:

SZAVD
FIRST APPELLANT

SZAVE
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

26 JULY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.A writ of certiorari be directed to the second respondent, quashing the decision of the second respondent dated 2 May 2003.

2.A writ of mandamus be directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 29 January 2002. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1472 of 2004

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:

SZAVD
FIRST APPELLANT

SZAVE
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	21 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the appellants appeal from orders made by a Federal Magistrate, those orders having been made on 17 September 2004. In those orders the learned Federal Magistrate dismissed an application made under s 39B of the Judiciary Act1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 2 May 2003 and handed down on 27 May 2003 in which the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the appellants.

2. The notice of appeal which is currently on the file has a number of grounds of appeal.  A significant part of that existing notice of appeal asserts that there was a denial of procedural fairness in the Federal Magistrates Court.  I have not heard the parties on that because I propose to deal with the matter on grounds which are adequate to deal with and dispose of the appeal.  I should add, however, in fairness to the learned Federal Magistrate and the Federal Magistrates Court, that no evidence has been submitted in support of an assertion that the Federal Magistrates Court denied procedural fairness, but as I indicated it is unnecessary to deal with that aspect of the notice of appeal.

3. This matter was called on for hearing on 9 March 2005, when the appellants appeared in person, and Ms Clegg appeared for the Minister.  Having heard Ms Clegg and having raised a number of matters with her I made an order under Order 80 of the Federal Court Rules directing the District Registrar to approach the New South Wales Bar Association for assistance in the light of the form of their notice of appeal and the discussion that had taken place between Ms Clegg and myself on that day.  By reason of the assertions that there had been a denial of procedural fairness by a judicial officer exercising judicial power of the Commonwealth, that is, the learned Federal Magistrate, and by reason of certain aspects of the content of the Tribunal's decision I thought it was appropriate that the Court have the assistance of counsel on behalf of the appellants.  Mr Braham has appeared as an amicus curiae and he has filed submissions in that capacity which he has addressed today.  Ms Clegg, on behalf of the Minister, has answered those submissions in writing and has dealt with the matters orally today as well.

4. I am grateful to both counsel for their clear and helpful written and oral presentation of arguments and Ms Clegg, I am sure, will not mind my thanking Mr Braham, in particular, for his willingness to appear as amicus curiae.  Without the assistance of the Bar and the profession in this respect the due administration of justice and the exercise of the judicial power of the Commonwealth cannot be properly undertaken on occasions such as this.  The Court is grateful for that assistance.

5. The appellants are Chinese nationals and are husband and wife.  The primary claims were put forward by, and in respect of, the male appellant.  In the Tribunal's reasons there is a description of the claims in evidence on pages 4 to 6.

   The Applicants state that they are Chinese nationals.  They arrived in Australia in October 2001.  They state that they are unwilling to return to China as the Applicant husband will be arrested, detained and mistreated because of his political activism and his support for the Falun Gong movement.

   The Applicant husband was born in 1956.  He stated that he was not a practitioner of Falun Gong, but he provided assistance and support to those who were.

   In May 1999 the state owned enterprise where he worked formed a unit to deal with and watch Falun Gong practitioners.  The Applicant husband was ordered to lead this group though he did not agree with its aims:  that was, to harm Falun Gong.

   The group was required to report every fourteen days.  The Applicant husband simply collected local newspaper information.  At the end of June 1999 another person was put in charge of the group.

   In August 1999 Lin came to the Applicant’s home.  Lin was a childhood friend of the Applicant husband.  Lin was both a journalist and Falun Gong practitioner.  He had known where to find the applicant as their fathers were close.  Lin asked the Applicant for assistance as he was being sought by the authorities.  The Applicant husband hid Lin in his home and then got a false residential card for him, and eventually helped him to move.

   In October 1999 received (sic) a letter from Lin advising that he had been able to leave China.

   In June 2000 the Applicant husband was visited by a girl who named Li (sic), who said she was a friend of Lin.  The Applicant husband knew that Lin had secretly returned to China.  The Applicant husband met Lin.  Lin asked for assistance for the Falun Gong organisation.

   The Applicant was asked why Falun Gong would need his assistance, it had millions of its own members, including senior officials.  The Applicant husband said they need to find local information.  He collected local information for them.  He says that he collected documents detailing the authorities’ plans against Falun Gong.

   He was able to obtain documents from central Party Committees from his workplace because his company was a very big one.

   The Applicant husband then said that at this stage he was secretly practising Falun Gong.

   The Applicant husband was issued with a passport in May 2001 and he was able to leave China in October 2001.  He states that he was able to obtain a passport and leave because the authorities had not found out about him at that stage and because he had many contacts in the PSB.

   In May 2001 XXX, one of Lin’s group was arrested, but XXX did not know the Applicant husband.

   After the Applicants left China Lin and Li were arrested.  The Applicant husband was told this when he telephoned his family.  His family had been informed by the Applicant husband’s PSB contacts.  The Applicants house was searched by the PSB. His case has been sent to PSB headquarters.  His name is on a warrant list.  He would be arrested and detained if he returned.

   The Applicant was asked if he had been in contact with the Falun Gong organisation here in Australia.  He has not.

   It was put to the Applicant that his claims were not inherently likely and that perhaps confirmation from Falun Gong that he had assisted the organisation in China could strengthen his application.

   The Applicant responded that he is very scared whenever he thinks of returning to China, and he does not want to raise this.

6. Importantly, there was before the Tribunal the “Application for Protection Visa” being a statement signed by the male appellant of some three pages.  It is important for the purposes of understanding these reasons to appreciate the full context of that statement.

   Application for Protection Visa
   [name of applicant]

   1.I used to be a senior Manager at a state-owned enterprise in Fujian, however, owing to my political dissident opinions and activities, my families and my I will and must suffer from persecution.  Therefore, I have to lodge our application for protection visa.

   2.As the Director of the Administration Department, I worked at Funing Light Industry Enterprises Co.  Ltd., which was one of the largest state-owned enterprises in Fujian Province of China.  Around early in May 1999, the major leaders of the company were asked for an urgent meeting, because of ‘April 25 Event’ in Beijing.  We were asked to study and discuss an internal official document issued by the central government, in which we were asked to keep eyes on the activities of those Falun Gong practitioners.

   3.At the end of that meeting, I was asked to establish and operate a special group which was specially monitoring the activities of those Falun Gong practitioners, especially looking for those leaders.  I was asked to submit the investigation reports twice a week.  I however did not think that those Falun Gong practitioners made any mistake or did any wrong things.  On the contrary, I much sympathized them, and believed what they did must be benefit for health of human being.  I therefore did not work hard like before.  I just beat around the bush, and collected the information which had been published on the newspapers.  The leader was very angry at my poor performance.  In the end of June 1999, the authorities appointed a new leader for the special group, and I was asked to leave that group.

   4.One night around the early part of August 1999, LIN Xiaohui suddenly came to my home.  LIN and I had known each other since our childhood.  He graduated from China People’s University in Beijing, and then was employed by Beijing Broadcasting Station.  In 1994, he became a reporter at Beijing Daily.  LIN was a pious Falun Gong practitioner, and published many articles in the newspaper to introduce Falun Gong, encouraging people to become Falun Gong practitioners.  From the end of July 1999, the Beijing authorities sent a special investigation group to the newspaper.  Several editors and reporters including LIN had been classified as the ‘Black Hand behind the Screen’.  LIN therefore escaped to Fujian.

   5.After arriving in Fujian, LIN dared not to return his parents’ place, but asking my assistance.  I arranged LIN to hide at my home firstly, then I got a false Residential ID card for him, and in the end I sent LIN to Naning.

   6.Just two days after LIN”s leaving, my office received an order issued by Public Security Ministry.  In October 1999, I received a letter sent by CHEN Zhonghao from Myanmar.  Chen was the new name of LIN Xiaohui.  I knew he had successfully escaped from mainland China.

   7.In June 2000, a girl name LI Zhi came to see me with a letter written by LIN.  I knew LIN had secretly returned to mainland China with a false Myanmar passport.  LI was LIN’s girl-friend.  I finally met LIN at the place of a Li’s relative.  LIN wanted me to assist him again.  Actually, he wanted me to join his organization.   It was an underground organization to spread the truth of Falun Gong, and to protest against the PRC authorities which ad persecuted on those Falun Gong practitioners.  LIN wanted me to collect the internal information from government.

   8.Based on my political opinions and beliefs, I agreed to join LIN’s organization in July 2000, and I provided him a lot of important information, such as the top-secret documents about proposals on thoroughly clearing up Falun Gong practitioners.

   9.In May 2001, a person named [X] had been arrested by the Fuqing PSB. [X] did not know me, but he used to a member of the underground organization.  [X] was under the leadership of LI Zhi, the girl-friend of LIN.  [X] exposed to the authorities that someone at a senior position had leak out of those confidential information.  I was worried so much, and I had to decide to secretly arrange my trip to the overseas in case something happened to me.  Owing to my special position, I got a lot of good friends in the PSB.  I asked one of my friends to get my passport, and then asked MA Ming, a staff at a travel agency, to arrange my visa.  In October 2001, I left China.

   10.Soon after my leaving, LI Zhi and LIN Xiaohui had been arrested in Guangzhou when the planned to escape.  All of my activities were therefore discovered.  My home in Fujian has been searched by the policemen, I have been dismissed permanently by my work, and my case has been transferred to the Fujian Public Security Department, and I have been on the wanted list.  Therefore, I must be subjected to persecution on my return.

7. The Tribunal dealt with the claims of the appellants in the passages to which I have referred in a manner which is not the subject of complaint.  The subject of complaint is directed, or found by reference to the section of the Tribunal's reasons entitled "Findings and Reasons".  After some matters of qualification and what might be said to be prefatory averment the Tribunal said the following as the totality of its reasoning process in the rejection of the claims and in coming to the conclusion it did:

   I am not satisfied that the Applicants claims are true.  I consider that it is inherently unlikely that the Falun Gong organisation, with its many members would need the assistance of the Applicant husband.  I am not persuaded that the Applicant husband had access to any information of significance.

   The Applicants claims are not supported by any other evidence, such as confirmation from the Falun Gong organisation that the Applicant husband provided assistance to them in China.  I note that the Falun Gong organisation itself acknowledges that false claims are laid regarding Falun Gong by people seeking to avoid returning to China.

   Having heard the Applicants evidence, and taking into account the unlikely nature of the claims I am not satisfied that they are true.  I am not satisfied that the Applicant husband assisted the Falun Gong in any significant way. I am not satisfied that he is at any risk of arrest or detention for assisting Falun Gong if he returns to China.

   I am not satisfied that the Applicants have a well founded fear of persecution should they return to China.

8. Let me commence my reasons by noting that the matters raised by Mr Braham need to be raised in an amended notice of appeal.  That notice of appeal will be filed within seven days.  In fairness to the learned Federal Magistrate though there was a heading in the learned Federal Magistrate's reasons "Adequacy of consideration of claims", the matters put to me by Mr Braham with precision and clarity today do not appear to have been advanced before the Federal Magistrate. Therefore, the extent to which matters raised today form or might be seen to be a demonstration of error in the learned Federal Magistrate’s reasons, that should be understood as being in relation to points not properly raised before him.

9. There is no objection, very properly, by the Minister to the new matters being raised by Mr Braham.  The gravamen of Mr Braham's submissions is that the reasoning process of the Tribunal member contained in the passages to which I have referred displays a jurisdictional error in two respects.  The first and most important respect is that it fails to deal with the claims of the appellants.  There have been a number of cases in this Court and in the High Court which reiterate the importance to the task faced by the Tribunal of dealing with the claims of the applicant for a visa.

10. Before dealing with this way of putting the appeal may I make some comments so they are not lost. The ultimate task of the Tribunal framed by reference to ss 36 and 65 of the Migration Act 1958 (Cth) (the “Act”) is to reach a state of satisfaction. Within that task there are a number of things that must be undertaken according to the Act and I dealt with those matters in Htun v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 194 ALR 244, in particular at [42]. Most fundamental in relation to those tasks required of the Tribunal by the statute is that the claims of the appellants be addressed and dealt with. That is not to say, as I said in Htun, and as others have said in other cases, that every objective fact raised by the applicant in evidence needs to be textually addressed.  A proper understanding of Yusuf's case (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323) in the High Court and the debate about s 430 of the Act leading up to that point and concluded by that case is enough to demonstrate that the Tribunal is not obliged to deal in writing with every scintilla of material that the applicant thinks is important or some review in Court thinks is important. However, it needs to deal with the fundamental way that an applicant puts his or her claims. If it doesn't, it hasn't reviewed the decision of the delegate.

11. This distinction can lead to debate about whether the claim or claims of the applicant have been dealt with, or whether what hasn't been dealt with is really some piece of evidence not thought to be relevant to the way the Tribunal wished to express an acceptance or rejection of the claims of the applicant. It is after all for the Tribunal to decide for itself, within the confines of the Act, what is important or not important in reaching its state of satisfaction. Within that framework, of course, a degree of constraint may be seen by the need to act conformably with reason and without caprice: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 20 of 2002 (2003) 198 ALR 59 and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.

12. Mr Braham's complaint on behalf of the appellants here is summarised in paragraph 14 of his submissions.  There he identifies the complaint that what is addressed on pages 10 and 11 of the reasons does not deal with important elements of what the appellants said.  First, the male appellant claimed to have an actual political opinion.  He said in his statement that he much sympathised with Falun Gong's struggle against the authorities in China.  This was a matter which was not withdrawn at the hearing although the Tribunal appeared to place some emphasis on whether or not the objective external practices of Falun Gong were undertaken.

13. The second way of putting the claim, according to Mr Braham, was that the male appellant had a close association with Lin, a childhood friend who had now been arrested.  Mr Lin had stayed at his home whilst or before he sought to escape from China to Myanmar.  The male appellant had helped Lin escape and had provided him with false documents.

1. The third way of putting the claim, according to Mr Braham, is that the male appellant now knows that the authorities have taken action against him and that his home has been searched and that he is now, having left China, been placed on a wanted list.

2. Mr Braham says that these matters were not considered.  Ms Clegg, on the other hand, says that in the five paragraphs to which I have referred there is or can be seen, reading those paragraphs as I must without an eye attuned for error, (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), a dealing with the whole of the claim as put by the appellants.

3. Ms Clegg submitted that, properly analysed in the light of the whole of the transcript before the Tribunal, which I have read, the whole claims can be reduced to an essential of assisting the Falun Gong organisation.  If viewed that way, the paragraphs should simply be read as a rejection of the totality of the evidence of the appellants as unlikely and not accepted as true.

4. I do not find this an easy case by any means.  In saying that, I should explain why I am giving extempore reasons.  It is not an easy case but in my view it is one that will not become any easier to resolve by any further reflection.  The difference between the assessment as to whether claims have been dealt with or not and the question of the mere failure to deal with evidence, is a judgmental one best dealt with after careful examination of the material, which I have prior to and during today undertaken.

5. Looking at the reasons, and giving them a commonsense and fair construction, it seems to me that what the Tribunal was referring to in the second of the paragraphs to which I have referred was the assistance that the male appellant said he sought to give in respect of access to information of significance.  That is not to read that paragraph with an eye attuned to error; it is to read the plain words of the Tribunal Member himself.

6. Precisely why that aspect of what the male appellant said might be said to be inherently unlikely is not clear to me.  Whether Falun Gong organisation is large, small or middling size, if someone did have information about how government bodies were reviewing them, there may be a very plausible reason why the Falun Gong would want that information.

7. Nevertheless, I do not need to take that aspect of the matter any further because it seems to me that what the Tribunal was dealing with there was the fear, or the claimed for the fear that the male appellant was putting forward, that he had helped the Falun Gong organisation by the provision of information of a secret nature.  One can see those matters referred to in paragraph 8 of the statement of the male appellant which I've already set out. 

8. The Tribunal then continues to use the plural, "claims", in the following paragraphs.  In the next but one paragraph commencing with the words, "Having heard", there is the strongest basis for Ms Clegg's rebuttal of Mr Braham's argument.  On one reading it might be said that this paragraph is a wrapping up of the totality of the evidence of the applicant and a rejection of it on credit.  However, the tolerably plain meaning of the claims referred to in that paragraph appear to me to relate to what the Tribunal has said in the paragraph earlier to which I have referred; that is the claims of the applicant that were inherently unlikely in relation to the provision of information that has earlier been referred to.  That is not to take a fine toothed comb to that paragraph because it is reinforced by the second sentence in that paragraph, that the Tribunal was not satisfied that the applicant husband had assisted Falun Gong in any significant way. 

9. As Mr Braham points out in paragraph 14 of his submissions and in his oral address, assistance to Falun Gong was not the only basis of the claim.  Notwithstanding Ms Clegg's arguments, I do not think that the totality of the claims made by the appellants can be properly reduced to the notion of assistance to the Falun Gong, in particular in the way I identified in these paragraphs.

10. Whilst no one should be criticised for brevity on reasons, the fact of the brevity of reasons is such as to require me to examine them alone to understand why in May 2003, after a hearing in February 2003, the Tribunal did what it did.  Looking at those reasons with a commonsense eye, I hope, what is being dealt with is what is said to be the inherently unlikely claims as to assistance to the Falun Gong in relation to the provision of information.

11. The Tribunal has not dealt with important ways that the appellants express their fear, that is in relation to being a sympathiser and having an actual political opinion and, secondly, as to the dealings with Lin and, thirdly, as to the fact of the appellants having now come to the attention of the authorities.  I'm not prepared to read these paragraphs as a disbelief in all respects of all the evidence of the appellants.  If that were what were being sought to be said, it should have been said.  As judges of this Court have said on a number of occasions, the finding that someone is not telling the truth is a serious matter not to be masked by assertions of mere implausibility as a surrogate or a cloak.

12. That is not meant as a criticism of this Tribunal because I do not read this Tribunal as having brushed aside the totality of the evidence of the appellants by the finding of inherent unlikelihood as to one aspect.  If it were the case that these paragraphs were intended to, in effect, be a complete rejection of the appellants’ evidence as untruthful then a real question would arise as to whether this Tribunal had approached its task capriciously by reason of bald assertion without any apparent reasoning, or bald assertion without any apparent reasoning beyond that based on one aspect of the material.

13. However, because I am able to deal with the appeal on the way that I have earlier identified, it is unnecessary for me to explore in any detail, whether or not approach on that basis might be said to be capricious.  More importantly, I have not had the assistance of Ms Clegg in that respect.  Though as I said, these questions of assessing whether the way the claims have been put have been addressed or not is a question of judgment, having read the material and in particular, the material put forward by the appellants and the transcript of the Tribunal hearing, I am of the view that the claims of the appellants have not been addressed by the Tribunal and for those reasons, in my view, there has been a failure to attend to the statutory task in a fundamental way by the Tribunal and thus there has been exhibited in my view, jurisdictional error.

14. That being the case, s 474 of the Act does not protect the decision and there has in fact been, in law, no decision made. For these reasons, I would uphold the appeal and make relevant orders dealing with the matter.

15. The orders that I will make today are:

    1.    That the appellants within seven days, file and serve an amended notice of appeal.

    2.I order that the Refugee Review Tribunal be joined as a party to this appeal and I direct that the respondent Minister send to my chambers and provide to the appellants and Mr Braham within seven days, a draft set of orders reflecting the consequences of what I have said today.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .

Associate:

Dated:             31 August 2005

Mr P Braham as amicus curiae
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	21 July 2005
Date of Judgment:	21 July 2005