SZDGB v MIAC

[2006] FMCA 341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDGB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 341

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in China – asserted breach of s.424A of the Migration Act 1958 (Cth) – breach conceded by the Minister but decision said to be supported by an independent and unimpeached finding – decision findings all integrated and based upon adverse credibility findings – decision cannot be supported solely by a finding limited to the past existence of subjective fear – observations on the desirability of disclosure by review tribunals of concerns about review applications at the time a hearing invitation is issued.

Migration Act 1958 (Cth), ss.424, 424A, 425

SZBMI v Minister for Immigration [2005] FMCA 1005
SZEEU v Minister for Immigration [2006] FCAFC 2
VAF v Minister for Immigration (2004) 206 ALR 471
VBAP of 2002 v Minister for Immigration [2005] FCA 965

Applicant: SZDGB

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number: SYG1033 of 2004

Judgment of: Driver FM

Hearing date: 9 March 2006

Delivered at: Sydney

Delivered on: 24 March 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr J D Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal handed down on 16 March 2004.

2. A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.

3. There shall be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1033 of 2004

SZDGB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 16 March 2004.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of political persecution.  He arrived in Australia on 11 December 2002 and departed again on 9 January 2003, re-entering China after a short visit to Japan.  He re-entered Australia on 17 February 2003.  On 25 February 2003 the applicant applied for a protection visa.  A delegate of the Minister refused that application on 9 May 2003.  On 23 May 2003 the applicant made a review application to the RRT. 

2. The RRT conducted a hearing on 28 November 2003.  The applicant attended with the assistance of a Mandarin interpreter.  The applicant had appointed an adviser who did not attend the hearing.  Only the applicant gave evidence to the RRT.

3. The applicant is a chef and vegetable sculptor by trade.  In his protection visa application he said that he worked at a restaurant in Qingdao City in Shangdong province.  He claimed that in January 2001 he started working for the Qingdao Food and Dumpling Company.  He had highly portable skills and had worked for many different employers before that time.  In August 2001 the applicant had been a successful candidate for work for the Qingdao Food and Dumpling Company in the United Arab Emirates.  However, the applicant claimed that he was required in November 2001 to attend a political class arranged with the Chinese Public Security Bureau.  He was also asked to sign undertakings restricting his movement and social contacts.  The applicant asserted that he found these conditions unfair and made a public speech to his colleagues in support of what he saw as his human rights.  The applicant claimed that this was the first time an export labour candidate had made such a protest.  He claimed that he was called into the company President’s office on 3 January 2002 and was called upon to withdraw a public letter he had written and to make a public confession of his wrongdoing to all staff of the company.  He refused and was threatened by the President with serious punishment.  The applicant claimed that notwithstanding the threat he posted a public statement outside the headquarters of the company and also at the entrances of seven of its branches.  The applicant claimed that this publicity produced a public reaction supportive of him. 

4. The applicant claimed that on 10 January 2002 he was abducted from his home by people who seized his “propaganda materials”.  He claimed he was taken to a dark room and tortured.  He claimed that his abductors revealed that they were acting on behalf of the President of the Qingdao Food and Dumpling Company.  The applicant claimed that he was held incommunicado for about three months.  After this time he agreed to recant and made a public confession on 31 March 2002.  He was then sacked.  The applicant claimed that after this he found it impossible to find employment.  He appealed against his sacking but a labour arbitration committee refused to accept his appeal because he was known for his dissident opinion.

5. The applicant claimed he then “lost control” and staged a public sit in outside the Qingdao City government offices and distributed leaflets.  He claimed he was arrested on 23 May 2002 for disturbing civil order and held in detention until the end of September 2002.  The applicant said he decided then to leave China.  In the meantime he secretly sent to various cities what he said were hundreds of anti-Communist tracts.  He did not have any examples to produce.

6. The applicant claimed he was able to obtain a visa for Australia with the help of a friend.  His protection visa application did not explain how his passport, issued in November 2001, was allowed to remain uncancelled, especially since he was supposed to have been detained not once, but twice, for agitating against the Chinese government.  The applicant did not seek Australian protection on his first visit here but did so on his second visit.

7. It is clear from the reasons in the RRT decision that, from the outset, the presiding member was interested in the fact that the applicant was issued with a passport in November 2001 and that it was not cancelled when he was supposedly detained for stirring dissent[1].  The presiding member in his reasons comments further on this issue on pages 70 and 71 of the court book.  At page 71 of the court book, the presiding member said:

   Due to the fact that the Applicant retained the use of his passport and was able to convince the Australian embassy that he continued to operate as a businessman, and due to the fact that he did not go into detail in his DIMIA application as to how he did these things in the claimed circumstances, the Tribunal was not able to make a decision favourable to him on the basis of the material in his file alone.  The Tribunal also needed more information about the status of the Qingdao Food and Dumpling Company.

   [1] court book, page 69

8. The applicant was invited to a hearing before the RRT by a standard form letter dated 3 November 2003[2].

   [2] court book, page 56

9. At the hearing, the presiding member questioned the applicant extensively about his claims and in particular about the Qingdao Food and Dumpling Company[3].  It is obvious from the description by the presiding member of what occurred at the hearing that the presiding member had serious credibility concerns about the applicant’s claims.  Those concerns are reflected in the RRT’s Findings and Reasons[4].  The RRT accepted that the applicant worked for the Qingdao Food and Dumpling Company and that he is no longer an employee of that company.  However, the presiding member found the applicant’s claims of his conflict with the Qingdao Food and Dumpling Company as implausible and found the applicant to be an unreliable witness.  The applicant’s claim of detention and torture was rejected as were all the applicant’s claims of harm at the instigation of the Qingdao Food and Dumpling Company.  The RRT also rejected as unreliable the applicant’s account of his departure from China and also rejected his claims of having produced and circulated anti-government literature.  In addition, the RRT concluded that the applicant acted like a person who had no fear of persecution because he voluntarily returned to China, and even Qingdao in 2003. 

   [3] court book, pages 71-76

   [4] commencing at court book, page 76

10. It is clear that the applicant’s claims were rejected by the RRT because his core claims were disbelieved.

The judicial review application

1. The applicant relies upon an amended application filed in court by leave on 25 January 2005. In that application the applicant asserts breaches of ss.424 and 424A of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant also asserts a want of natural justice (procedural fairness) by reference to the asserted conduct of the presiding member at the hearing as well as asserted interpretation problems and an inability to see and comment on adverse information. The applicant also asserts error by reference to an asserted failure to follow the procedures and criteria set out in the UNHCR Handbook on the procedures and criteria for determining refugee status under the Convention.

Submissions

1. Only the Minister filed written submissions.  The applicant presented oral submissions with great force and vigour.  These submissions enabled me to develop a better understanding of his craft of vegetable sculpting but were unfortunately of no assistance in resolving the legal issues.

2. I requested Mr Smith, for the Minister, in his oral submissions to deal with issues relating to s.424A of the Migration Act which had not been specifically raised by the applicant. Mr Smith conceded, on behalf of the Minister, that the RRT had relied upon information contained in the applicant’s protection visa application, which had not been put to the RRT by the applicant for the purposes of his review application, and which should have been disclosed pursuant to s.424A of the Migration Act[5].  Nevertheless, Mr Smith submits that the RRT decision is not vitiated by jurisdictional error because it is supported by an independent and unimpeachable conclusion that did not depend upon the discloseable information[6].

   [5] The concession related specifically to the information referred to in the third paragraph on page 77 of the court book.

   [6] See the last paragraph of the RRT decision on page 79 of the court book

3. During the course of argument I explored with Mr Smith whether the RRT had breached s.424A by failing to disclose the adverse information based upon the applicant’s passport referred to by the presiding member on pages 70 and 71 of the court book, at the time the applicant was invited to attend the RRT hearing. Mr Smith submits that, while the obligation to comply with s.424A can arise at any stage of the review process, the question of whether the section has been breached can only be addressed when a decision has been made by reference to the reasons for the decision. If information thought at some preliminary stage to be potentially determinative is not ultimately determinative, Mr Smith submits that no breach of s.424A is demonstrated. In the present case, while the RRT decision did depend in part upon adverse information derived from the applicant’s passport, the applicant had presented his passport at the RRT hearing and it was the original passport presented at the hearing upon which the RRT ultimately relied. Mr Smith submits that this was not information required to be disclosed[7].

   [7] s.424(3)(b)

Reasoning

1. In its reasons for decision the RRT said[8]:

   The Applicant showed in his DIMIA application that he knew that the PSB was responsible for the political conditions applicable to the postings.  He spoke of the PSB running the “political classes”.  In this context it is hard to conceive that he would have attacked the Qingdao Food and Dumpling Company.  In addition, his evidence of the unfolding attack is inconsistent implausible.  In his written evidence, the Applicant claimed support from all of his co-workers, but he acknowledged in the hearing that other workers did not necessarily view the conditions of the UAE postings in the same way he did.  He claimed he posted condemnations of the Qingdao Food and Dumpling Company at the entrances of about seven of its locations and implied that these remained visible long enough for all his co-workers to align with him against the company.  However, the Tribunal finds it implausible that the company would have allowed such serious detractions to remain visible for long enough for that to happen.

   [8] court book, page 77

2. The Minister concedes that the information in the applicant’s protection visa application was information not given to the RRT for the purposes of the applicant’s review application and that it was information which was part of the reason for affirming the decision of the delegate, by reference to the reasons for decision of the RRT. Accordingly, the information was required to be disclosed pursuant to s.424A(1) of the Migration Act. It was not disclosed. Ordinarily, the result would be that the RRT decision is vitiated by jurisdictional error and relief in the form of constitutional writs would be awarded. Nevertheless, the Minister contends that the RRT decision is supported by an alternative finding which is not based upon information derived from the applicant’s protection visa application and which was not required to be disclosed pursuant to s.424A(1). Where a tribunal decision can be wholly supported by a ground which is unimpeached by jurisdictional error, relief can, and should, be refused: VBAP of 2002 v Minister for Immigration [2005] FCA 965, especially at [33]. This was the approach I took in SZBMI v Minister for Immigration [2005] FMCA 1005. However, a majority of the Full Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2, while accepting the principle, rejected its application by me in that case[9].  The reason of their Honours was that the adverse credibility findings made by the RRT in SZBMI pervaded the entire decision and the independent basis for the decision that I discerned was infected by them. 

   [9] per Weinberg J at [165] and Allsop J at [234]

3. Each case must be considered on its own facts.  Nevertheless, this decision is, to my mind, a weaker one for the application of the principle in VBAP than SZBMI.  The Minister points to the presiding member’s statement on page 79 of the court book that:

   Furthermore, the Tribunal concludes that the Applicant acted like a person who had no fear of persecution because he returned voluntarily to the PRC, and in particular to Qingdao, in January 2003.  The Tribunal dismisses his reason for returning as a poor and unfounded excuse.  He had plenty more time on his temporary business visa to acclimatise and seek information about his rights to claim protection in Australia, which he claims was his express true purpose in coming here in the first place.

4. In my view, this cannot be an independent and unimpeachable basis to support the RRT decision.  The reasoning is more sparse than in SZBMI and is more clearly linked to the adverse credibility findings based upon information that should have been disclosed and was not.  Furthermore, the paragraph identified by the Minister does not, considered in isolation, support the decision to affirm the delegate’s decision.  It could not.  All the presiding member was saying was that the applicant acted like a person who had no fear of persecution.  It could not follow from that, even if it were to be accepted, that the applicant was not at risk of persecution.  The Refugees Convention exists not only to protect the cowardly and the cautious but also the courageous and the foolhardy.  It is one thing to say that an applicant’s conduct is not consistent with a well-founded fear of persecution.  It is another thing to say that a person’s conduct is not consistent with fear (in the sense of trepidation).  The former may support a decision affirming a delegate’s decision.  The latter could not. 

5. The Refugees Convention speaks in the present and looks to the future.  It requires a forward looking assessment of the risk of persecution.  The past is only relevant as a means of informing that assessment.  A past lack of trepidation is not necessarily inconsistent with a well‑founded present apprehension of a risk of harm in the future.  To misunderstand that is to misunderstand fundamentally the inquiry that the Convention requires.

6. It follows that I reject the Minister’s contention that the RRT decision can survive the acknowledged breach of s.424A(1).

7. Before concluding my reasons, however, I would like to comment on the presiding member’s observations in relation to the basis upon which he anticipated affirming the delegate’s decision at the time the applicant was invited to a hearing. The relevant statement is set out at page 71 of the court book and is reproduced at paragraph 7 of these reasons. This decision is unusual in that the presiding member has set out in his reasons his thinking at the time of the hearing invitation. In my view, it can be strongly argued from the presiding member’s statement that, at the time the hearing invitation was issued, an obligation of disclosure arose pursuant to s.424A(1) in relation to the information contained in the copy of the applicant’s passport that was attached to his protection visa application. It is tolerably clear from the presiding member’s statement that, at the time the hearing invitation was issued, that was information that the presiding member considered would be the reason, or part of the reason, for affirming the decision under review if nothing else occurred.

8. The applicant was invited to a hearing so that the RRT could explore the issue further. The information in the applicant’s passport was indeed material to the outcome and is referred to by the presiding member bother earlier and later in his reasons. However, the presiding member is careful to point out that, in making his decision, he was relying upon the applicant’s original passport that he brought with him to the RRT hearing, not the copy that accompanied his protection visa application. Here we see the fine, indeed absurd, distinctions that can arise as a result of the strict interpretation of s.424A which is now required. The same information was material to the adverse credibility conclusions which determined the outcome of the case before the RRT, both at the time of the hearing invitation and at the time of the RRT decision, but the source of that information changed at the time of the hearing from the protection visa application to the original passport produced by the applicant at the hearing. The former was required to be disclosed, the latter was not.

9. I accept Mr Smith’s submission that VAF v Minister for Immigration (2004) 206 ALR 471 still stands for the proposition that one must analyse the issue of jurisdictional error based upon an asserted breach of s.424A by reference to the reasons for decision of the RRT[10]. It follows, in my view, that while, by reference to the RRT reasons, a past breach of s.424A can be identified at the time the hearing invitation was issued, the “information” thought at that time to be determinative ultimately turned out not to be so, and hence jurisdictional error is not established by that breach. The most that can be said is that, if at the time, the breach had been detected, the statutory duty of disclosure could have been enforced in a court by mandatory injunction.

   [10] see in particular the observations of Allsop J in SZEEU at [216]

10. The strict duty of disclosure flowing from s.424A currently presents difficulties for the review tribunals. Very fine distinctions can be called for which tax the minds of even the most eminent lawyers and cause non-lawyers to shake their heads in disbelief. The difficulty centres on the task of deciding whether information is excluded from the obligation of disclosure pursuant to s.424A(3)(b) of the Migration Act. The review tribunals may be tempted to defer that task until after a hearing when all relevant information is known. That would, in my view, be an unfortunate result. First, it would expose the review tribunals to other difficulties. After a hearing, where credibility problems are manifest, it may be difficult, if not impossible, for a review tribunal to demonstrate that the invitation to comment is fairly given. It may be apparent that by that stage the presiding member has already made up his or her mind, thereby demonstrating pre‑judgement.

1. Secondly, by deferring an invitation to comment until after a hearing, much of the value of the disclosure obligation in s.424A may be lost. Once a hearing invitation is issued, it should be apparent to an applicant that something needs to be done in order to attempt to dissuade the review tribunal from affirming the decision of the delegate, but generally, an applicant does not know what it is that is preventing the review tribunal from making a favourable decision. Generally, an applicant finds out at the hearing if he or she attends but the fairness of that disclosure varies enormously. There may be circumstances in which the hearing invitation is no more than an empty gesture and the applicant is never adequately informed of what concerns are held by the presiding member that the applicant must deal with. Where s.425 is breached by a failure to provide a genuine hearing opportunity, jurisdictional error is also established.

2. These problems could be substantially avoided if the review tribunals adopted, as a universal practice, written disclosure of the concerns held by the tribunal about a review application at the time a hearing invitation is issued. Such a disclosure would enable applicants to prepare properly for their hearing. It would also ensure that s.425 is complied with and should generally ensure that s.424A is complied with[11]. In that regard, it is worth noting that it is wrong to assume that a response to an invitation to comment made pursuant to s.424A must be made in writing. The invitation must be in writing, but the response need not be. If the invitation is made in a timely way preparatory to a hearing, the applicant could be permitted to provide his or her comments orally at the hearing.

   [11] Except in relation to information provided to a tribunal at or after a hearing

3. These are matters that the review tribunals could usefully consider.  In this case jurisdictional error has been established and I will provide relief in the form of the constitutional writs of certiorari and mandamus.  The applicant is self represented and has not incurred any legal costs.  In the circumstances, I will order that there be no order as to costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 March 2006