SZEKR v Minister for Immigration
[2005] FMCA 882
•29 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEKR v MINISTER FOR IMMIGRATION | [2005] FMCA 882 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 420, 424A, 425, 425A, 426, 426A, 441A, 441C, 474
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Haddara v Minister for Immigration & Multicultural Affairs (1999) 166 ALR 401
Rahman v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 391
Minister for Immigration & Multicultural Affairs v Capitly (1999) 55 ALD 365
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
| Applicant: | SZEKR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2859 of 2004 |
| Delivered on: | 29 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 18 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr T Ower |
| Counsel for the Respondent: | Ms T Wong |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2859 of 2004
| SZEKR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 July 2004 and handed down on 17 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 29 April 2004 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEKR”.
The applicant, who claims to be a citizen of the People’s Republic of China, arrived in Australia on 21 April 2004. On 23 April 2004 she lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-29) (“CB”). On
29 April 2004 the delegate refused to grant a protection visa (CB pp.30-42) and on 2 June 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.43-45).
In a statement accompanying her original visa application, the applicant claimed she is a “common Falun Gong practitioner” and that in May 2002 she travelled to Beijing to “exercise [her] constitutional right to appeal to the government on behalf of Falun Dafa”. The applicant claimed that at the entrance to the Appeal Bureau she was stopped by the authorities and forced to return home. She alleged that she was subsequently detained at Haerbin No.2 Detention Centre. The applicant claimed she was again detained and subsequently sentenced to 6 months in prison at the Haerbin City Prison between December 2002 and June 2003 and she was “tortured until [she] was on the verge of death”. She claimed she was later released, “as the authorities were afraid of taking responsibility should [she] die in jail”. The applicant alleged that before the persecution against the Falun Gong began she was very healthy but that due to the persecution at the detention centre and prison she was devastated both physically and mentally (CB p.26).
The Tribunal’s findings and reasons
Ms T Wong of Counsel, appearing for the respondent, prepared written submissions prior to the hearing which contained the following summary of the Tribunal’s decision:
a)The Tribunal’s decision commenced with an overview of the applicant’s circumstances and then reviewed the law applicable to determining whether the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (CB pp.55-57).
b)The Tribunal then reviewed the applicant’s claims and evidence provided in support of those claims (CB pp.57-58). The Tribunal referred to the country information regarding the treatment of Falun Gong practitioners by the Chinese Government and concluded that the Chinese authorities consider Falun Gong an “evil cult” and that membership of the Falun Gong may attract persecution from Chinese state authorities (CB p.59).
c)The Tribunal noted that the applicant had provided no evidence of any kind to support her claim to be a Falun Gong practitioner and that there had been a number of claims by people seeking to exploit the persecuted situation of Falun Gong practitioners (CB p.60). The Tribunal noted that the applicant had failed to attend the scheduled hearing and that the Tribunal did not therefore have the opportunity to question the applicant or seek further evidence regarding her claims (CB p.61).
d)The Tribunal concluded that, in the absence of any further information or evidence, the applicant’s allegations were not credible (CB p.61). The Tribunal did not accept the applicant’s claims that she was a Falun Gong practitioner and was detained and tortured because of her membership of the Falun Gong (CB p.62).
e)The Tribunal determined that the applicant did not have a genuine fear of persecution based on a Convention reason and affirmed the delegate’s decision to refuse to grant a protection visa (CB p.62).
Application for review of the Tribunal’s decision
On 17 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 26 November 2004 the applicant filed an amended application which contained the following grounds:
1.The applicant did not receive proper notification of the Refugee Review Tribunal Hearing and, as a result, was denied her right to be present at the hearing.
2.The Refugee Review Tribunal’s failure to give any weight to some of the applicant’s evidence on the basis that [it] she was not present at the hearing to be tested on the issue of her membership of Falun Gong, constituted a failure to exercise jurisdiction.
3.The applicant was denied her right pursuant to s.424A of the Migration Act 1958 to have matters adverse to her case put to her for comment.
At the hearing on 18 May 2005, Mr T Ower of Counsel, appearing for the applicant, sought to amend the pleadings by adding a new ground. Leave was granted on the understanding that the respondent was granted leave to approach the Court if any further evidence emerged as a result of allowing the amendment to be made.
4.The RRT failed to comply with its obligation pursuant to s.420(2)(b) of the Act by proceeding to determine the matter under s.426(1).
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 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), 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 at [76] and Applicant 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 South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s written submissions
Mr T Ower of Counsel, appearing for the applicant, filed written submissions prior to the hearing. However, some of the issues raised were no longer significant given the concessions made by Counsel in respect of ground 1. No submissions were made in respect of amending the written submissions filed to eliminate redundant grounds. The filed submissions contained the following contentions:
a)The applicant relied upon the affidavit sworn on 26 November 2004 in support of her contention that she was not given actual notice of her invitation to appear and give evidence at the Tribunal hearing. As a consequence, she was denied her statutory right to appear at the hearing.
b)The respondent is required to give actual notice pursuant to s.425 of the Act which is in the following terms:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it;
(c)or subsection 424C(1) or (2) applies to the applicant
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
c)The respondent’s obligations under s.425 of the Act are not necessarily satisfied by compliance with s.441A or s.426 of the Act (see by analogy Haddara v Minister for Immigration & Multicultural & Indigenous Affairs (“Haddara”) and Rahman v Minister for Immigration & Multicultural & Indigenous Affairs (“Rahman”)). There is an ongoing obligation to afford the opportunity to appear and give evidence, particularly where the applicant may be under a disability at the relevant time: Minister for Immigration & Multicultural & Indigenous Affairs v Capitly (“Capitly”). The applicant’s incapacity in the present case was that the contents of the letter from the Tribunal were not explained to her despite her efforts to have the matter “handed” by her “agent”, Mr Lu.
d)The most critical part of the reasoning of the Tribunal was the fact that the applicant did not appear at the hearing to provide further evidence to prove she was a Falun Gong practitioner. The Tribunal concluded:
“The Tribunal would have liked to ask the applicant whether she had any problems with the government authorities between June 2003 and the date of departure from China. She neither responded to the invitation nor turned up for the scheduled hearing on the appointed date … The paucity of the evidence undermines the veracity of her claims that she is a Falun Gong practitioner who was detained and tortured for the practice of Falun Dafa …” (CB p.61)
e)Implicit in this reasoning was that the applicant had the opportunity to attend and provide further information but chose not to do so. Therefore, the Tribunal’s decision was based upon a particular fact that did not exist. No actual notice was given to the applicant that her written statements would be discounted entirely if she did not attend the hearing. This was a crucial matter adverse to the applicant’s case and notification should have been given pursuant to the respondent’s obligation under s.424A of the Act.
f)Insofar as the Tribunal drew an adverse inference against the applicant because of any perceived “choice” by the applicant not to appear, its decision had no evidentiary basis and therefore lacked jurisdiction.
Respondent’s written submissions
Ms T Wong of Counsel, appearing for the respondent, filed written submissions prior to the hearing. However, some of the arguments responded to were no longer significant given the concessions made by Counsel for the applicant in respect of ground 1. The respondent’s submissions contained the following contentions:
Failure to Receive Proper Notification
a)The applicant’s written submissions argued that the Tribunal was required to give “actual notice” to the applicant of the Tribunal’s invitation to attend a hearing, pursuant to s.425 of the Act. The submissions further stated that the Tribunal’s obligations under s.425 of the Act were not necessarily satisfied by compliance with ss.441A or 426 and referred to three decisions in support of this conclusion: Haddara, Rahman and Capitly.
b)Although the applicant’s submissions reproduced s.425 (see paragraph 9(b) above) and referred to s.426, the relevant section regarding notice of invitations to appear, was s.425A which is in the following terms:
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2)The notice must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4)The notice must contain a statement of the effect of section 426A.
c)The arguments raised by the applicant were recently considered and rejected by the Full Court of the Federal Court in VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (“VNAA”). In that decision, the Court stated at [14]:
“It is, however, plain that [sections 425 and 425A] are to be read together. Section 425 merely requires the Tribunal to invite an applicant to appear. It contains no mechanism by which the invitation is to be extended. That is done in s425A. If the Tribunal invites the applicant to appear, it must be done in the manner there set out, namely by notice specifying the date, time and place at which the applicant is to appear. That this is the proper construction of the provisions is established by decisions at first instance, with which we agree.
…
It would be absurd to treat Parliament as intending by s425 that by some unstated means the Tribunal is to issue an invitation to appear before the Tribunal, and by s425A that it is to dispatch a notice containing details of the date, time and place for the appearance, but not containing the invitation itself.”
d)The Court held that the appellants in VNAA had failed to establish breach of s.425 or s.425A, even though the appellants did not become aware of the invitation to hearing. In those circumstances, s.441C deemed the appellants to have received the invitation seven working days after the date stated upon it, and no jurisdictional error could be demonstrated: VNAA at [15].
e)In the present case, the evidence established that the Tribunal complied with the requirements of s.425A, by providing notice in accordance with s.441A. The Invitation to Hearing stated the day on which and the time and place at which the hearing would take place, as required by s.425A(1). The Invitation to Hearing was also sent by prepaid post to the “last address for service provided to the Tribunal by the recipient” and “the last residential or business address provided to the Tribunal by the recipient” in accordance with s.441A(4).
f)The applicant was therefore taken to have received the Invitation to Hearing on 18 June 2004, seven working days after the date of the Invitation: s.441C(4). In these circumstances, the Tribunal was authorised to proceed to decide the review in the applicant’s absence, and without any further warning: see s.426A and VNAA.
g)Each of the three decisions referred to by the applicant dealt with an earlier statutory regime, whereby the obligation upon the Tribunal was to give the applicant an opportunity to appear at a hearing, in contrast to the present statutory regime which merely requires the Tribunal to invite the applicant to a hearing. The applicant failed to demonstrate a breach of the current statutory requirements and was therefore unable to establish a jurisdictional error: VNAA.
Failure to Give Appropriate Weight to the Applicant’s Evidence
h)The applicant claimed, in her second ground of review, that the Tribunal improperly failed to give any weight to some of her evidence on the basis that she was not present at the hearing to be tested on the issue of her membership of Falun Gong. The applicant also submitted in her written submissions:
“In so far as the Tribunal drew an adverse inference against the applicant because of any perceived ‘choice’ by the applicant not to appear, its decision had no evidentiary basis and therefore lacked jurisdiction.”
i)This was an improper characterisation of the Tribunal’s findings, which were based upon the insufficiency of evidence provided by the applicant, rather than the inability of the Tribunal to test the applicant on the evidence provided or adverse inferences drawn from the applicant’s decision not to appear at the hearing. The Tribunal noted in its decision that the applicant had not mentioned anything about her practice of Falun Gong in any section of her application, and had hardly provided any information about her activities or association with the Falun Gong organisation (CB p.61).
j)The Tribunal further emphasised that it was the “paucity of evidence” provided by the applicant which undermined her claims. The Tribunal reached its finding that the applicant’s allegations were not credible “in the absence of any further information or evidence” provided by the applicant (CB p.61). In these circumstances, the Tribunal’s decision not to accept the applicant’s claims was a conclusion clearly open to the Tribunal on the basis of the limited information provided by the applicant. The second ground of review must also fail.
Failure to Comply with s.424A of the Act
k)The applicant claimed that actual notice should have been given to the applicant that “her written statements would be discounted entirely if she did not attend the hearing” pursuant to s.424A of the Act as this was a “crucial matter” adverse to the applicant’s case.
l)As stated above, the Tribunal did not base its decision upon a reasoning process which discounted the applicant’s written statements because she did not attend the hearing, but rather found against the applicant because she did not provide sufficient information in support of her claims. The decision of the Tribunal and methods used by the Tribunal to reach its findings do not provide any basis for this ground of review to succeed.
m)In any event, s.424A only applies to “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” (emphasis added). The use of the word “information” connotes material of a factual nature and could not have been intended to include methods of reasoning used by the Tribunal and conclusions drawn from evidence placed before the Tribunal. The third ground of review must also fail.
The proceedings
A Court Book prepared by the respondent solicitors was filed and served on 4 November 2004.
For the purposes of this hearing an affidavit of the applicant affirmed on 26 November 2004 was filed and served. The affidavit contained the following statements:
2.I hired the services of Mr Song Tao Lu, a man I believed to be an immigration agent, to assist me in obtaining a Protection Visa. I initially gave him $2,500 to help me and he did not give me a receipt. The P.O. Box address in Haymarket noted in my RRT application form is Mr Lu’s address.
3.I note from the Green Book [Court Book] that my application was signed by a person named Bao. I do not know this person.
4.I moved residence from [House Number] Beamish Street, Campsie on 24 April 2004.
5.I did not receive notification of the RRT hearing at my residence. However, a friend advised me that a letter was waiting for me at Campsie Post Office. I collected the letter from the Post Office and took it to Mr Lu as I could not understand it. He told me: “Don’t worry about this, I will look after it”.
6.The next advice I received from Mr Lu was to the effect that my application to the RRT had been refused. He then asked me for more money. I refused and got a friend to draft the application for review of the RRT decision.
For the purposes of this hearing an affidavit of Olivia Oi Lam Mak, Solicitor for the respondent, sworn on 16 May 2005 was filed and served. The relevant information from that affidavit is as follows:
3.I am informed by Rachel White, Senior Legal Officer at the Refugee Review Tribunal (“RRT”) and verily believe that the RRT maintains a postal log of all letters sent by registered post and that Australia Post impresses a date stamp on the postal log to indicate the date on which the letter was sent out.
4.Appearing at CB 47 and CB 48 is a copy of the RRT’s letter to the applicant inviting her to attend and give evidence at a hearing on 13 July 2004.
5.Annexed and marked “A” is a copy of the RRT postal log with the date stamp on which the Letter was sent impressed by Australia Post …”
Rp20093875 [Applicant]
P.O. Box [No.]
HAYMARKET NSW 1240 49241
Rp20093876 [Applicant]
[No.] Beamish Street
CAMPSIE NSW 2194 49241
Given the concession made by Counsel for the applicant referred to in paragraph 16 below, the affidavits are no longer of significance. However, the key clauses have been reproduced to clarify that they do not touch on the remaining grounds and are limited to ground 1.
Counsel for the applicant indicated that he no longer pressed ground 1 (Failure to receive proper notification) due to the binding authority of the Full Federal Court decision in VNAA. However, Counsel for the applicant sought leave of the Court to add a new ground which was contained in his written submissions in paragraph 4 and for convenience will be referred to as ground 4. Counsel for the respondent indicated that she had no objection to the amendment provided the respondent was permitted to submit further material in respect of this ground if it subsequently became aware of additional material in respect of the new ground being available. Consequently, leave was granted to Counsel for the applicant to incorporate an additional ground to the pleadings.
Reasons
In respect of ground 3 of the amended application, the applicant pleaded there was a breach of s.424A of the Act in that matters adverse to the case were not put to the applicant for comment. The document in question was the “Public Notice Regarding Wu’s Political Asylum Case in New York” published by the Eastern US Falun Dafa Association, Western US Falun Dafa and Falun Dafa Association of Canada dated June 1999 (CB p.109). It was submitted that the document was raised in the penultimate page of the decision as fairly and squarely a reason why an application which did have local Falun Gong support in some way should perhaps be discounted. Counsel for the applicant submitted that the Public Notice itself did not fall within the exception contained in s.424A although prima facie when one examined it, it was possible to argue “it is about Falun Gong, it is not necessarily about the applicant herself, it is about a person called Wu, who is in a class of people, and therefore falls within the exception of s.424A(3)”. However, Counsel argued that the argument required some scrutiny.
Section 424A(3) of the Act states:
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member; or
(b)…
(c)…
Counsel for the applicant submitted that the Public Notice document was specifically about another person and was not about a class of persons. It was further submitted that Mr Wu may be part of a theoretical class of people that were “fake” Falun Gong practitioners but it was not. It was a Public Notice regarding Mr Wu. It stated specifically at the end of the Notice that it was specifically written for the recent political asylum case of Wu in New York and therefore it was about a specific person. That being the case, the document was not part of the exception to be found in s.424A(3). Based on this argument, Counsel contended that the Notice was about a specific person and therefore did not fall within the exception. It was argued that, to be fair to the applicant in this case, it should have been put to her under s.424A of the Act and it was not.
Counsel for the respondent took the Court to the extract of the Notice which the Tribunal relied upon and which stated:
“If genuine Falun Gong practitioners sought political asylum, they would obtain proofs through local Falun Gong assistance centres and local Falun Dafa Societies. Therefore, if any individuals claim themselves Falun Gong practitioners and seek political asylum by themselves without proofs … they are either fake Falun Gong practitioners or those who intentionally damage Falun Gong’s reputation with their ulterior motives.” (CB p.60)
The respondent submitted that the particular comment that the Tribunal sought to make by referring to the extract was the more general portion of the Notice. That portion in particular stated: “if any individuals claim themselves Falun Gong practitioners and seek political asylum without proofs … they are either fake Falun Gong practitioners or those who intentionally damage Falun Gong’s reputation with their ulterior motives”.
The respondent referred the Court to the Full Federal Court decision of Minister for Immigration & Multicultural & Indigenous Affairs v NAMW per Beaumont, Merkel and Hely JJ where it is noted that the purpose of this particular exception is to ensure that the general country information which is not specific to a particular applicant does not need to be disclosed to the particular applicant. This gives a purposive interpretation of this provision rather than seeking to rely too heavily upon the precise wording of the section. It was submitted by the respondent Counsel that the mere reference to another person was not intended to encompass information of the type that is found in the Wu Notice. Many news reports not particular to an applicant may contain information which by passing reference refer to a particular person. Giving a purposive interpretation to s.424A(3) it was submitted that what was intended in this section was to encompass information that would not otherwise come to the general attention of an applicant, perhaps information about an applicant’s family member or other individuals who the applicant might rely upon in their testimony, to support their application. In other words, information that is so particular to an applicant that they might expect that they would have an opportunity to respond to that information.
In light of the Full Federal Court decision in NAMW, I am unable to accept the construction contended by Counsel for the applicant and reject the argument that the Tribunal breached s.424A of the Act by not providing the applicant with a copy of the Wu Notice and specifically seeking her response to it. The submissions that the Tribunal committed a jurisdictional error in respect of this issue cannot be sustained.
In respect of the applicant’s new ground, conveniently identified as ground 4 in the pleadings, the applicant claimed that the Tribunal failed to comply with its obligation pursuant to s.420(2)(b) of the Act by proceeding to determine the matter under s.426A(1) in that the circumstances of this case were a special circumstance outside the general principle permitting the Tribunal to rely on the provisions of s.426A. Counsel for the applicant submitted that the circumstances were special in this case because if the Tribunal had accepted the applicant’s argument that she was a member of the Falun Gong then it would follow that refugee status would be granted. In other words, it was accepted by the Tribunal that being a member of the Falun Gong would prima facie result in persecution in China. Therefore, it was a very serious matter in terms of whether or not the applicant was a Falun Gong practitioner. It was argued that the decision in this case was not a situation where reasons behind, or underlying, refugee status were somehow called into question. It was essentially whether or not the applicant was a Falun Gong practitioner.
Counsel for the respondent submitted that the issue was addressed by simply looking at two issues, the written material provided by the applicant and the Wu Notice. The applicant argued that, although the Tribunal paid lip service to the idea that a liberal attitude should be taken when dealing with evidence before the Tribunal, the Tribunal had really rejected it out of hand. It was submitted that the Tribunal, without giving any notice or opportunity to the applicant, would take the approach of rejecting the material. It was submitted that it was incumbent upon the Tribunal pursuant to s.420 of the Act to act in accordance with the substantial justice and merits of the case. The section states:
420Refugee Review Tribunal’s way of operating
(1)The Tribunal, in carrying out its function under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
In support of that contention, the Court was referred to the applicant’s written statements attached to her original visa application (CB pp.26-27) and the statement attached to the application for review of the Tribunal’s decision (CB p.45) which were rejected by the Tribunal member in his statement that there was no evidence to support the applicant’s claim that she was a practitioner of Falun Gong (CB p.60.3). Counsel for the applicant claimed that those statements were discounted out of hand. It was submitted that it was incumbent upon the Tribunal to actually go further in its attempt to tease out of those statements answers to the questions that were raised by the statements. It was argued that the Tribunal member raised a series of questions that were very important to the determination of the applicant’s case. The questions were:
·When did the applicant join the organisation?
·What role did she play in the organisation?
·In what circumstances was she arrested?
·If she indeed was arrested and detained, under what conditions was she released?
·How did she leave China?
The submission was that all these issues were very important and would have impacted upon the determination. Given that there was a certainty that if someone was a genuine Falun Gong practitioner, they would return to China and face prosecution, in those circumstances there should have been at least some attempt to take these questions further. Counsel for the applicant submitted that these were very serious questions raised by the Tribunal itself with a clear inference that perhaps the answers to those questions would have impacted upon how the determination would be made. In those circumstances, it was incumbent to comply with s.420 of the Act. Further, it would have been a relatively easy matter for the Tribunal, in the period between the hearing date and the decision, to write to the applicant to raise these questions. It was submitted that although this was not done, it should have been done.
In response to that argument, Counsel for the respondent took the Court to the precise terms of the letter of invitation addressed to the applicant on 11 June 2004 which was the last correspondence forwarded to the applicant prior to the Tribunal making its decision (CB pp.47-48). Although the letter was in predictable terms, it formed a very important function to notify the applicant that the Tribunal would not make a decision in the applicant’s favour on the information that it had before it. For that reason, the applicant was required to attend the Tribunal hearing to give oral evidence and present arguments in support of her claim. The letter also extended an invitation to another person or persons to give evidence in support of the applicant and the applicant was invited to forward new documents or written arguments that she wished the Tribunal to consider.
Counsel for the respondent submitted that the letter performed precisely the same function that the letter asserted by the applicant should have been sent at a later date. The questions that the Tribunal raised in its decision were really questions going to every aspect of the applicant’s case. The Tribunal’s invitation letter put the applicant on notice of that very fact. It was submitted that the letter dated 11 June 2004 was not the only letter forwarded by the Department and the Tribunal giving the applicant an opportunity to provide further material in support of her claims. At the time of making her application to the Tribunal, the applicant had been notified by the reasons of the delegate that it considered the applicant had not provided sufficient evidence to substantiate her claims (CB pp.30-42). When applying to the Tribunal, despite what should have been obvious to the applicant, that she had not provided sufficient evidence at that point, she did not provide any further evidence. The applicant’s second statement in support of her claim which was attached to the application for Tribunal review was again brief, consisting of only three paragraphs and did not contain any details as to what practices or what activities the applicant had undertaken as a Falun Gong practitioner. In essence, it raised the same questions as the Tribunal noted in its decision and which remained unanswered.
Counsel for the respondent referred to the Full Federal Court decision of VNAA per Sundberg, Hely and Gyles JJ at [16]:
“That what happened in the present case involved a breach of s 420 does not appear to have been put to the primary judge. That section requires the Tribunal to pursue the objectives of providing a fair and just mechanism of review, and to act according to substantial justice and the merits of the case. Part 7 of the Act (in which ss 420, 425A, 426A, 441A and 441C appear) must be read as a whole. Sections 425A, 426A, 441A and 441C are specific provisions qualifying the general provisions of s 420. The scheme they involve expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence.”
It was submitted that if the Tribunal complied with the requirements of s.425A and the associated sections set out in the extract above, the Full Federal Court does not consider there are any other incumbent obligations upon the Tribunal in that regard.
Conclusion
For the reasons set out above, I have been unable to identify any jurisdictional error in the Tribunal’s decision. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicants to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 June 2005
0