SZCOA v Minister for Immigration
[2006] FMCA 317
•24 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 317 |
| MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a protection visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 483A |
| Abebe v Commonwealthof Australia (1999) 197 CLR 510 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 Re Ruddock; Ex parte Applicant S154/202 [2003] HCA 60 S106/2002 vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 198 ALR 59 SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 |
| Applicant: | SZCOA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG175 of 2004 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 28 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the Respondent: | Mr G T Johnson |
| Solicitors for the Respondent: | Blake Dawson Waldron Lawyers |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG175 of 2004
| SZCOA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 22 January 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), made on 4 December 2003 and handed down on
2 January 2004. It affirmed a decision of the delegate of the first respondent (“the delegate”) made on 30 December 2002, refusing to grant the applicant a Protection (Class XA) Visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been granted the pseudonym “SZCOA”.
The applicant has not sought to join the Tribunal as a party. However, given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision contains a summary of the applicant’s background which states the following. The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 24 November 2002. On 16 December 2002, she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 30 December 2002, a delegate of the Minister refused to grant a protection visa and on 31 January 2004, the applicant applied to the Tribunal for review of the delegate’s decision, at Court Book 54 (“CB”).
The applicant was born in April 1971. She claims that she was an accountant from 1990 to 1995, a shop assistant from 1995 to 2000 and that she was unemployed between October 2000 and November 2002. She claims that she, together with others, established the Unemployed Action Committee (“UAC”) on 1 April 2001. She states that its objectives were designed to assist the unemployed and to destroy corruption. She claims she contacted many people and organised a demonstration in Shenyang City Square on 20 May 2001 which gathered about 300 people. She handed out pamphlets and speeches were given before the police came and the group dispersed.
She claimed the group organised four other demonstrations at different times to avoid the government’s attention. They were discovered by authorities and on 22 December 2001, police surrounded her house. She was denounced for having an illegal organisation. She claimed she was detained between December 2001 and March 2002 and then released. She also claimed she had help in departing China.
The Tribunal’s Findings and Reasons
A convenient summary of the Tribunal’s reasons are contained in the respondent’s written submissions prepared by Mr Johnson and I adopt paragraphs 7, 8 and 9 of those submissions for the purposes of this judgment:
7.Ultimately, the Tribunal was not satisfied that the criteria for the grant of a protection visa had been made out. The lack of detail given by the applicant and inconsistency with ICI led the Tribunal to the conclusion that the application was not genuine (CB62.8). The Tribunal found that, while the applicant may have been unemployed for a time, she was never involved in demonstrations or, if she was, her involvement was so low-level that it would not have attracted the adverse attention of the authorities (CB62.9). It followed that the Tribunal did not accept that the applicant was ever detained as a result of such activities. Thus, the Tribunal did not accept that the applicant had any subjective fear of persecution at all. Further and most importantly, the Tribunal found no well-founded fear of persecution if she returns to China now or in the foreseeable future (CB63.1).
8.In reaching those findings, the Tribunal referred to the following matters:
a)The vagueness and generality of the information presented – particularly the lack of detail about the various demonstrations, beyond the fact that they occurred in parks or square and that she handed out pamphlets (CB61.4);
b)The implausibility that her home was surrounded and she was arrested, given that she had been (she said) watched by police in five demonstrations without any arrest being made. The Tribunal noted that the applicant could not provide an answer when asked about that inconsistency (CB61.6);
c)The applicant lived continuously at the same address for at least ten years before departing for Australia and remained in China a further nine months after her alleged detention came to an end without attracting the adverse interest of the authorities. Together with the delay in departure, this was found to be inconsistent with both the presence of a subjective fear and the proposition that assistance (to depart China) was ever required by the applicant (CB61.8);
d)The applicant’s passport belonged to a class issued through the MFA (Ministry of Foreign Affairs), which only issues passports to people travelling on official business or people who are Government employees (CB61.9-62.1);
e)A finding that it would not be “worth the risk”, based on ICI, for someone to manufacture documents to obtain a passport (CB62.1);
f)The lack of any detailed knowledge of collective activism at a level which would attract the adverse interest of the authorities (CB62.2-63.3);
g)The fact that the applicant waited three weeks after arriving in Australia to submit her protection visa application, which was seen by the Tribunal as inconsistent with a subjective fear of persecution (CB62.5);
h)Lack of detail also as to whether the UAC exists, or existed, or whether any of the demonstrations occurred at all (CB62.7).
9.The Tribunal also noted that, where the applicant’s evidence conflicted with the ICI, the Tribunal preferred the ICI (CB62.4).
Application for Review of the Tribunal’s Decision
On 22 January 2004, the applicant filed an application for review under s.39B of the Judiciary Act. On 11 August 2004, with leave of the Court the applicant filed an amended application which set out the following grounds:
1.There was an error of law in the Tribunal’s decision constituting a jurisdictional error
Particulars
a)The decision of the Tribunal in relation to my application is mainly relied on so-called Independent Country Information (the “ICI information”), particularly some of ICI information regarding to the passport issued by Ministry of Foreign Affairs (MFA).
b)However, the Tribunal failed to demonstrate provide me complete ICI information at any time during its processing, neither before the hearing nor during the hearing nor after the hearing before the Tribunal.
c)The Tribunal did grab piece of ICI information during the hearing, but the Tribunal failed to give weight to the fact that it is impossible for me to completely and clearly understand the actual meaning of those pieces of ICI information, because it is impossible for the interpreter at the hearing to do so.
d)As the fact that the Tribunal failed to provide me complete ICI information before or during or after the hearing arranged by the Tribunal, it is definitely impossible for me to have a fair chance to make my comment on the ICI information, which has been used by the Tribunal as main reasons to affirm the refusal decision of Immigration Department of Multicultural and Indigenous Affairs (the “DIMIA”).
e)In summary, the Tribunal failed to comply with its obligations under Section 424 of the Migration Act 1958, including:
The Tribunal failed to provide me complete ICI information which has been used as the reason, for affirming the unfair decision of the DIMIA.
The Tribunal failed to explain to me, clearly and thoroughly, the information, he used in his decision, later on, will directly relating to my review application for DIMIA’s decision.
The Tribunal failed to ensure that I fully and completely understand the information that he would be used in his decision before and during the Tribunal.
Particularly, the Tribunal failed to provide me the information by one of methods specified in Section 441A of the Migration Act 1958.
2.There was procedural error in the Tribunal’s decision constituting an absence of natural justice.
Particulars
f)The Tribunal failed to demonstrate its NECESSARY knowledge regarding to my original country, particularly, the Tribunal refused my application mainly relied on the fact that I held a MFA passport. However, my passport is obviously not a MFA one!
g)The Tribunal, during the hearing, obviously misled me, and intentionally distorted my claims or despoil of my right to clarify my claims during the hearing.
h)The Tribunal failed to use correct and proper Independent Country Information (ICI), instead, she used information which were over 5 years old.
3.The Tribunal failed to carefully and fairly consider the applicant’s claims based on procedures and criteria prescribed in Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (“UNHCR Handbook”).
i)The Tribunal failed to demonstrate its necessary knowledge and experience and such an understanding.
I have been guided by Paragraph 190, Part II, UNHCR Handbook that a qualified examiner should have necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs. Especially, an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own.
j)The Tribunal failed to use all the means at its disposal to produce the necessary evidence in support of the application. Also, the Tribunal failed to demonstrate that there are good reasons to the contrary.
I have been guided by Paragraph 196, Part II, UNHCR Handbook, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. It may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Also, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
k)The Tribunal failed to consider my statements in the context of the relevant background situation. Especially, the Tribunal failed to demonstrate its sound knowledge of conditions in my country of origin.
I have been guided by Paragraph 42, Part I, UNHCR Handbook, the applicant’s statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation.
l)The Tribunal failed to consider the fact that our ‘Unemployed action committee’ were eventually discovered by the PRC authorities. On the evening of 22 December 2001, when our four people planned another demonstration at the New Year Day, the policemen surrounded my home. All of our four people were arrested. We were denounced to have an illegal organisation, and to plan anti-government activities with that illegal organisation. As a result, many members have been arrested.
I have been guided by Paragraph 43, Part II, UNHCR Handbook, the considerations need not necessarily be based on the applicant’s own personal experience. What, for example, happened to his friends and relatives and other member so the same racial or social group may well show that his fear that sooner or later he also will become a victim of persecution is well-founded.
m)The Tribunal failed to consider the fact that the mere possession of a valid national passport is no bar to my application, because my passport is obtained surreptitiously.
I have been guided by paragraph 48, Part I, UNHCR Handbook, possession of a passport cannot therefore always be considered as evidence of loyalty on the part of the holder, or as an indication of the absence of fear. There may be cases where a passport has been obtained surreptitiously. In conclusion, therefore the mere possession of a valid national passport is no bar to refugee status.
n)The Tribunal failed to give weight to the fact that various sufferings and experiences of mine in China, if taken together, must produce a strong effect on my mind that can reasonably justify my claim to well-founded fear of persecution on cumulative ground.
I have been guided by Paragraph 53, Part II, UNHCR Handbook, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on “cumulative grounds”.
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1, held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 v Commonwealth of Australia at [76] and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v State of South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs. [2003] HCA 26.
Reasons
The applicant did not file an outline of submissions in support of her application. However, when invited to make oral submissions, she indicated to the Court that she had prepared some handwritten notes from her sister that she would read to the Court via the interpreter.
The applicant indicated that she was aware of another decision made by the same Tribunal member and that decision contained the same mistakes that were present in her decision. The applicant did not identify the other decision, nor provide the Court with any documentation in support of this claim. The applicant also challenged the finding that her passport was one issued by the Chinese government to government employees or those travelling on official government business. These are issues by the Chinese Ministry of Foreign Affairs (“MFA”) and are identified as MFA passports. These passports carry the following characteristic statement:
The Ministry of Foreign Affairs of the People’s Republic of China requests all civil and military authorities of foreign countries to allow the bearer of this passport to pass freely and afford assistance in case of need.
The applicant stated that the Tribunal member had mistakenly identified her passport as being one of those in the special category. This was due to the Tribunal member’s lack of knowledge of these matters.
The final point in the applicant’s submission was that the independent country information referred to by the Tribunal member was old and out of date and not relevant to the applicant. The applicant indicated that in addition to these submissions she relied on her amended application.
Mr Johnson advised the Court that he had prepared detailed written submissions in respect of the issues raised by the amended application. He also said he would address the issues that the applicant had raised in her oral submissions by reference to s.424A authorities and the discuss the impact of the recent Full Federal Court decision of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2.
The principal complaint of the applicant in her amended application (ground 1(a)-(e)) appears to be that complete independent country information was not provided to her by the Tribunal. Mr Johnson submitted that s.424A of the Act does not require that an invitation under that section be given to an applicant in respect of independent country information of the kind considered by the Tribunal in this case. That is because the information is not specifically about the applicant, or another person, and is just about a class of persons of which the applicant or other person is a member: s.424A(3)(a). Also see QAAC of 2004 v Refugee Review Tribunal per Dowsett, Hely and Lander J at [20] to [30]; Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 per Beaumont J at [68]-[71] and per Merkel and Hely JJ at [138].
In ground 2 of the amended application there is an allegation that there was a breach of natural justice in this respect, but the applicant has not produced a transcript of the proceedings and there is no evidence that country information was not raised with the applicant during the course of the hearing: see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 per Beaumont, Merkel and Hely JJ at [21]. Mr Johnson submitted that the Tribunal was not under any obligation, in the course of its reasons, to set out the flow of questions that transpired at the hearing. The summary that it provided, particularly in the last two paragraphs of CB 60, show that it did raise the following with the applicant:
a)It noted that her passport was issued through the MFA (and what that implied); and
b)The independent country information set out by the Tribunal (CB 58-59) indicated that millions had been unemployed in Shenyang over the last six years because of government economic policy and that as a result many working groups had sprung up to contest government policy.
In the absence of a transcript, it is not possible to determine whether there were more references by the Tribunal to the independent country information. The decision does indicate that important points in the independent country information were raised.
Mr Johnson submitted that there is no evidence of any failure of interpretation that made it impossible for the Tribunal to deal with independent country information at the hearing. It was submitted that the allegation in ground 1(c) should be rejected because of the absence of a transcript and improper expert evidence as to the quality of the translation. Mr Johnson also submitted that the way in which the particulars were worded suggest that the applicant was hypothesising that there may have been a problem, rather than clearly alleging there was one.
In relation to ground 1(d)-(e) and ground 2 (denial of natural justice), Mr Johnson submitted that there is nothing to demonstrate that there was a denial of procedural fairness, with or without ss.424A and 424B of the Act. Nonetheless, those two provisions pertain to the present application for review of the Tribunal decision, particularly to s.422B. Mr Johnson submitted that the Tribunal is not obliged to disclose country information that is not required to be disclosed by s.424A(1), even if the Tribunal proposes to take into account the country information in affirming the delegate’s decision: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 per Merkel and Hely JJ at [139].
Ground 2(f) questioned the competence of the Tribunal, but there is no evidence to sustain the proposition that the Tribunal did not have knowledge of the situation in China. Mr Johnson submitted that the presence or lack of any such knowledge could not be relied upon to show jurisdictional error. The only suggestion in support of the allegation is that the Tribunal refused the application because the applicant had an MFA passport. This was denied by the applicant. These facts are not for the Court to determine. A factual error would not be suffice to show a breach of natural justice, let alone any jurisdictional error that might vitiate the Tribunal’s decision. I accept the submission that the Tribunal did not rely on the type of the applicant’s passport to make its decision. The Tribunal’s ultimate decision was based on the lack of sufficient information to satisfy it that the relevant criteria were met.
Ground 2(g) alleges the applicant was misled, however there is no evidence and the allegation is not proved. In that ground, the applicant also claims that the Tribunal intentionally “distorted” the applicant’s claims, or stopped her from clarifying her claims, during the hearing. In the absence of a transcript or any evidence to support the claim this cannot be sustained. I also accept the respondents’ submission there is nothing to establish bad faith by the Tribunal member: Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 per Whitlam, Finn and Goldberg JJ at [18].
Ground 2(g) also alleges actual bias, which, although not specifically pleaded, is referred to by Mr Johnson. He drew my attention to the passage in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 per Weinberg, Stone and Jacobson JJ at [15]:
…the Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even if the Tribunal were to disbelieve every element of the applicant’s claim (and it did not), it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have pre-judged the matter, and he or she has their mind closed to any argument in support of a contrary conclusion; Son v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at [134]. Such allegations must not be likely made: Attorney General (NSW) v Quinn (1990) 170 CLR 1 at [36] per Brennan J. They also must be formally and distinctly made and clearly proven; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J…
Alternatively, if ground 2(g) infers a reasonable apprehension of bias, there is no evidence to support this allegation. Mr Johnson referred to the authority of NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 per Allsop J at [14] with Moore and Tamberlin JJ agreeing:
The general test for apprehended bias is whether the relevant circumstances are such that a fair minded and informed person might reasonably apprehend that the decision maker might not bring, or have brought, an impaired mind to bear on the decision: Webb v R (1994) 181 CLR 41 at [70] to [71]; Laws v Australian Broadcasting Tribunal (1990) 1970 CLR 70 at [90] to [92]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [343] to [345]; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27] to [32].
Ground 2(h) alleges that the Tribunal failed to make correct and proper use of the independent country information. It also mentions that some of the information was at least five years old. Mr Johnson referred the Court to the authority of NAOO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 26 per Beaumont, Lingren and Tamberlin JJ at [14], where Their Honours held:
There is no ground for judicial review available, as the applicant now claims, because country information “was not actually utilised properly”. There is no more than a claim for “merits review”.
Mr Johnson also relied on the decision of SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 per Hely J at [16], where His Honour held that:
(I)t was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its facts finding function. The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.
Then His Honour referred to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
In ground 3 of the amended application, the applicant claims that the Tribunal failed to “carefully and fairly consider the applicant’s claim”. Mr Johnson submitted that this ground and the particulars attached as 3(i)-(n) amount to no more than a plea for impermissible merits review. There is no evidence that the Tribunal failed to consider any claim that it was obliged to consider: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 141 FCR 1 at [55]-[63]. I accept Mr Johnson’s submission that the Tribunal checked with the applicant whether it had correctly listed her claims and she agreed that it had done so (CB 59.6). Then it dealt with those claims. It was submitted that the applicant might not like the result, however her claims were dealt with. The Tribunal does not fall into jurisdictional error merely because it does not accept what the applicant claims.
I agree with Mr Johnson’s argument that a failure to consider a claim that the Tribunal is obliged to consider, or failure to consider mandatory relevant consideration is not “a failure merely to attend to evidence, even probative evidence, and by such remote (to) commit a factual error”: Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244 per Spender J at [1] and Allsop J at [42]. The applicant has not shown that any evidence was overlooked by the Tribunal in its decision making process.
Ground 3(i) and the second sentence of ground 3(k) repeat the allegation that the Tribunal lacked knowledge or experience.
Mr Johnson submitted that the applicant did not identify evidence to that effect, but even if she did that would not show jurisdictional error. Whatever the applicant might think of the Tribunal’s knowledge or experience, the Tribunal was empowered to determine the application. It could not grant a visa unless it was satisfied that the criteria for the grant were met: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 per Ryan, Jacobson and Lander JJ at [15]. Their Honours explained s.65(1) of the Act at:
(I)t does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
Ground 3(j) alleges that the Tribunal failed to use all means at its disposal to produce the necessary evidence in support of the application and it failed to demonstrate there good reasons to the contrary. Mr Johnson submitted that the second of these issues is answered by the passage in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs at [15] and followed in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ at [17]. It is not for the Tribunal to dispose of the applicant’s claim. Further, the first issue raised under this ground also misconceives the role of the Tribunal as it is not obliged to make out the applicant’s case for her: see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs at [27] referring to Pilbara Aboriginal Land CouncilAboriginal Corp Inc v Minister for Aboriginal & Torres Straight Islander Affairs (2000) 103 FCR 539 at 555 to 557; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
Mr Johnson submitted that Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 at [20] and the other cases cited in that paragraph comprise a substantial body of authority that s.424 of the Act does not impose any obligation on the Tribunal to seek further information. Secondly, the Tribunal was under no obligation to make further enquiries: see WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 per Marshall, Mansfield and Siopis JJ at [73]; WAGJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 per Hely, Nicholson and Mansfield JJ at [24] to [25] deals particularly with s.427; WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 per Marshall, Mansfield and Siopis JJ at [19]; Minister for Immigration & Multicultural & Indigenous Affairs v Shi Bo Yu [2004] FCAFC 333 per Allsop at [3] with whom Tamberlin J agreed.
Thirdly, in Re Ruddock; Ex parte Applicant S154/202 [2003] HCA 60 Their Honours rejected the application to the Tribunal of the rule in Browne v Dunn (1893) 6 R 67. They repeated the principle that it is for an applicant to advance whatever evidence or arguments he or she wishes and it is for the Tribunal to decide whether the claim has been made out: Gummow and Hayden JJ at [55]-[58] and Gleeson CJ agreed at [1], a principle which relied upon Abebe v Commonwealth at [187]. It was held that the Tribunal, conducting an inquisitorial hearing, is not obliged to prompt or stimulate an elaboration which the applicant chooses not to embark upon.
In respect of ground 3(l),(m) and (n), Mr Johnson submitted, and I accept the submission, that the applicant is merely seeking an impermissible merits review. The Tribunal considered the applicant’s claims but simply was not satisfied that she met the visa criteria. That was a factual matter for the Tribunal to decide. In addition,
Mr Johnson submitted that even if the Tribunal decision were illogical, that in itself would not prove jurisdictional error. Mr Johnson relied on NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 236 at [24]-[30], where the Full Federal Court considered the High Court decision of S106/2002 vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 198 ALR 59, and reached the conclusion that, “want of logic does not of itself suffice to constitute error of law, stillness error of law which is jurisdictional”.
I now turn to Mr Johnson’s submissions in response to the applicant’s oral submissions made from the bar table. I accept the submission that the Court has to decide the applicant’s case according to law and that would include following Federal Court authorities. It does not include a roaming enquiry into other people’s applications and the outcomes that they have received in the Tribunal. I note the applicant’s assertion that her case should be determined along the same lines as the other case to which she refers, but she has not identified it by either its pseudonym or Court file number. The applicant’s submissions are misconceived and are of no assistance to her own application.
The second of the applicant’s oral submissions is that the Tribunal referred to country information which was some years old.
The material that the Tribunal needs to consider from independent sources is an issue for the Tribunal and does not amount to jurisdictional error. Nor does the weight that the Tribunal may give to country information or the facts drawn from it. All are within the realm of the Tribunal and there is no jurisdictional error by the Tribunal simply relying on some material that might be dated some years prior to the decision. Mr Johnson referred to NAOO v Minister for Immigration & Multicultural & Indigenous Affairs per Beaumont, Lingren and Tamberlin JJ at [14] and SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 per Hely J at [15]. These are more fully discussed in paragraph [22] above.
Mr Johnson then made a series of submissions in respect of the Full Federal Court the decision SZEEU, handed down on Friday
24 February 2006, and relevant to aspects of these proceedings. Justice Weinberg at [155] agreed with the observations of Allsop J regarding the impact of SAAP on the reasoning in both Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (“Paul”) and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”). Justice Weinberg in SZEEU at [163] said in relation to the structure of s424A and the application of the expression “a part of the reason”:
The cases suggest that this expression should be read benevolently, in favour of an applicant for review.
His Honour did say that if there were any doubt whether information that is adverse to the applicant did form part of the reason for a decision, that doubt should generally be resolved in favour of the applicant.
At [164] of SZEEU His Honour discussed what is meant by “a part of the reason” for the decision:
With regard to the second category of “information”, which Moore J has aptly characterised as “the similar claims information”, I am satisfied that this constituted information for the purposes of s 424A. I agree with Allsop J’s conclusion that it played a part (albeit in conjunction with the other factors that Moore J has identified) in the Tribunal’s conclusion that the appellant’s evidence should not be accepted. It makes no difference, in my view, that the Tribunal’s comments regarding the similar claims information appeared in its reasons after it had already indicated that it rejected the appellant’s evidence. The fact is that the Tribunal regarded the similar claims information as a significant matter, sufficiently important to warrant specific mention. Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision-making process, it does not follow that it did not play “a part” in its reasons for decision. It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person’s claim, by focussing largely upon where, in the reasons for decision, the information is discussed. The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal’s reasons must, of course, be read as a whole.
Further at [165] His Honour said that the reasons should be read as a whole rather than in a linear fashion, indicating that it might be dangerous to say that something was a part of the reason for a decision simply because of its location in the decision:
The possibility that the similar claims information contributed to the Tribunal’s rejection of the appellant’s claim cannot realistically be excluded. The appellant’s credibility was of critical importance to his claim. Any “information” that the Tribunal considered as casting serious doubt upon his credibility, whether referred to in the early stages of its reasons, or as fortifying its earlier conclusions, seems to me likely to have played “a part” in the decision. For that reason, the Tribunal’s failure to provide the appellant with notice, in writing, of its intention to rely upon that “information” gave rise to a breach of s 424A, and in accordance with SAAP, to jurisdictional error.
At [182] His Honour discussed the consequences of attempting to clarify natural justice in this way:
However, since SAAP, fairness is no longer the touchstone. Indeed, it may be regarded as being only marginally relevant. The requirements of the section have been construed as being imperative, and accordingly, must be met, whatever the circumstances may be. The only limiting requirement is that the information in question be “a part of the reason” for affirming the decision. The causal connection must be real, but need not be great. It is not necessary to show that “but for” the information in question the result would have been different. It is sufficient simply to show that the “information” contributed in some way, which renders it an operative causal link, to the decision itself.
Mr Johnson submitted that adopting Weinberg J’s language, the respondent in this case would say that the fact that the applicant had a MFA passport was not causally connected with the decision in a real way. That bare fact did not contribute to the decision in such a way that it was, to use Weinberg J’s words, “an operative casual link”.
Justice Allsop at [200] of SZEEU discussed the application of s.424A(1) and then from [202] onwards, considered the word “information”. This included a discussion at [206]-[207] of what is not information followed by a discussion of Paul and VAF. The relevant paragraphs in respect of the present case are at [215]-[216]. At [215] Allsop J said:
In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.
Mr Johnson submitted that the next paragraph in His Honour’s judgment is germane to the matter currently before this Court:
That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.
Mr Johnson submitted that the Full Federal Court in SZEEU enlightens the approach to s.424A, that is, whether there is any practical injustice or breach of procedural fairness involved in specific information not being revealed.
The Full Federal Court nonetheless undertakes a holistic analysis of the reasoning process of the Tribunal, to identify what truly is, or are, a reason or reasons for the decision. That which is a part of the reason will need to be revealed under s.424A(1), subject to the exceptions of s.424A(3). However not every fact mentioned becomes information in the relevant sense. Mr Johnson argued that the fact that the applicant had a MFA passport was not a reason or part of the reason for the decision. The reason for the decision was a conflict between what the country information said about the consequences of having an MFA passport and what the applicant said to the Tribunal when the matter was put to her.
The Tribunal did indicate (CB 62.4) that where the independent country information conflicted with that presented by the applicant, the Tribunal preferred the independent country information. Mr Johnson submitted that there was no breach of s.424A in relation to the Tribunal’s notion that the applicant held a MFA passport. Even if there was an error, it was an error of fact and within jurisdiction.
Conclusion
The applicant appeared in this Court as a self-represented litigant and that places an obligation on this Court to independently consider whether any argument based on the materials could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186.
Mr Johnson, counsel for the respondent, assisted the Court with detailed written submissions supplemented by comprehensive oral submissions in respect of recent changes to the law. Aided by these submissions, I have again reviewed all of the material contained in the Court Book together with submissions of both parties. I am satisfied that none of the grounds pleaded in the amended application can be sustained. Neither is it apparent that any other grounds of review exist which suggests that the Tribunal has made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 22 March 2006
0