SZFAS v Minister for Immigration
[2006] FMCA 1029
•12 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFAS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1029 |
| MIGRATION – RRT decision – Chinese person fearing political persecution – re‑constitution of Tribunal between hearing and decision without informing applicant – reference by Tribunal to date of obtaining Australian visa in China – whether information given to Tribunal by applicant – whether part of reasons for affirming delegate – effect of SZEEU – jurisdictional error found – matter remitted. |
Acts Interpretation Act 1901 (Cth), s.8
Federal Magistrates Court Rules 2001 (Cth), Pt.12
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(b), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Liu & Anor v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
Morales v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 374
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NADG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 893
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 296
SXXB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 537
SZDIL & Ors v Minister for Immigration [2006] FMCA 431
SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZFHK v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 156
| Applicant: | SZFAS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3287 of 2004 |
| Judgment of: | Smith FM |
| Hearing dates: | 10 November 2005, 12 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Killalea (pro bono) |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 12 October 2004 in matter N04/49071.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 6 April 2004.
The first respondent pay the applicant’s costs in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3287 of 2004
| SZFAS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
(As Corrected)
This is an application filed on 8 November 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 September 2004 and handed down on 12 October 2004. The Tribunal affirmed the decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s jurisdiction under s.483A is the same as that of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa.
The history of the present application in this Court has been protracted for several reasons. When it was eventually listed for a hearing before me on 10 November 2005, the applicant was unrepresented and I had a number of concerns arising from my reading of the papers in the light of the arguments which the applicant sought to put forward. In particular, the applicant complained that he was never notified by the Tribunal of a change in its constitution after the hearing which he attended, that the new member did not take into account all that he had said at the hearing held by the former member, and that the new member did not understand his written claims. However, the applicant was not able to present a legal argument addressing the procedure followed by the Tribunal, nor arguments addressing the reasoning followed by the Tribunal. I therefore adjourned the hearing and referred the applicant to the Registrar under Part 12 of the Federal Magistrates Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel.
Steps were taken to effect that referral, and eventually it was achieved by the appointment of Mr Killalea of counsel to represent the applicant. He has identified a further argument available to the applicant in relation to s.424A, and it is that issue upon which I propose to decide this case.
However, as will appear below, other aspects of the procedure and reasoning of the Tribunal also raise concerns, and it should not be assumed that I would not have found for the applicant on other grounds in the absence of the s.424A defect. When the Tribunal is performing the further consideration of the matter, it should not assume that the previous Tribunal made only the “technical” jurisdictional error upon which I have based my judgment. The applicant is entitled to expect a full and genuine opportunity to have his refugee claims examined again on their merits.
The applicant arrived in Australia on 18 February 2004. On 18 March 2004 he lodged an application for a protection visa. A statutory declaration attached to the visa application explained his reasons for seeking protection in Australia against return to his country of nationality, the People’s Republic of China. In 20 paragraphs it gave a moderately detailed history which I do not propose to set out in full.
In short, the applicant claimed to have become disenchanted with the government of China following his loss of employment after witnessing corruption in his workplace. He joined a group of people sympathetic with the struggles of unemployed people for “their basic human rights”, and participated during 2003 in some of their activities in relation to petitioning government officials and distributing “some propaganda materials”. He claimed to have come to the view that such activities “could not make social influence”, and to have joined two other people, whom I shall refer to as Z and W, in secretly planning a demonstration in support of their ideals which they thought would gain national attention throughout China. This involved organising a very large group of people to attend a demonstration on an important railway line. He said: “if we could organize large‑scale demonstration in [location] railway, which would produce huge influence in the country”. From evidence that he subsequently gave at the hearing, it appears that it was thought that the demonstration might lead to a protracted disruption of the railway line and thereby gain publicity.
The applicant claimed that the three leaders set up separate groups or cells. His own group was concerned “to manufacture propaganda materials, including banners, slogans, flags, leaflets, handbills, and so on”. He said that at the time this was being organised:
I knew that it would be very dangerous for me, and therefore I asked T to help me got a foreign visa in the mean times, so that I was ready to go to the overseas from time to time in case our plan was unsuccessful.
He said that it was decided to hold the protest on a date in January 2004, but this date was changed when “we found many policemen gathered around the railway station [at the chosen location]”. They then decided to choose a different location on the railway line and set a date for a protest on 8 February 2004. His statutory declaration continued:
(16)Unexpectedly, three members in the W’s group were suddenly arrested by the Public Security Bureau (PSB) on 6th February 2004. Although those three members did not have any knowledge about Z and me, they knew W very well. Especially, they confessed our plan to the PSB. We immediately arranged W and other relevant members to leave [place], and also temporarily stopped our plan.
(17)The situation became worse and worse, because T informed me that PSB established a special group to chase those people like us who planned to have protest against the government. W was on the wanted list already. He urged me to leave the country as soon as possible (T has already gotten a visa for me).
(18)I really did not want to give up, because I took four months to plan our protest, and everything was almost ready. However, when T informed me that W had been arrested in [province] on 15th February 2004, I had to leave the country on 17th February 2004.
(19)I was lucky, because the PSB came to my home with arrest warrant on 18th February 2004; and Z as well as other 11 members were arrested during the following days.
(20)It appears that I must be subjected to persecution on my return.
After a delegate refused the application on 6 April 2004, the applicant lodged an application to the Tribunal accompanied by a written submission criticising the delegate’s decision and repeating some of the paragraphs from his original statutory declaration, including those which I have quoted above. It also contained a statement explaining the absence of documentary evidence:
Refer to the first issue, as a matter of fact, I left China in hurry, because I had to leave just two days after W was arrested in [province]. Therefore, it is obviously impossible for me to get any documentary evidences together with me during the escape. I left the country on 17th February 2004; and the PSB came to my home with arrest warrant on 18th February 2004. All of my personal documents have been confiscated by the PSB since then. How could I get any further documentary evidences?
The applicant was invited to attend a hearing, and attended that hearing on 18 June 2004. It was conducted by the member then constituting the Tribunal for the case, Mr Hoysted. A transcript of the hearing is now in evidence before me. The applicant attended without a representative and was questioned about his history. He gave evidence which, on my reading, was generally consistent with his statutory declaration, although the questioning did not take him into greater detail.
The transcript includes a passage, which I shall quote below, in which Mr Hoysted put to the applicant that he could have left China at an earlier date. Mr Hoysted also asked the applicant generally about his concerns about obtaining employment in China.
At three places in the course of the hearing Mr Hoysted told the applicant: “I will go away and think about it”. The last occasion was at the end of the hearing where he said:
So Mr [Applicant], I will go away and consider all that. Mr [Applicant], I will go away and consider all that. When I have made a decision the Tribunal will write to you and let you know.
However, when the applicant received the decision of the Tribunal handed down on 12 October 2004 it was a decision made by a different person, Mr Norman. The applicant at no time had been informed about procedures followed within the Tribunal to reconstitute the Tribunal following the retirement of Mr Hoysted. At no stage was the applicant invited to put forward further material to inform the new member, nor asked whether he wished to attend a further hearing conducted by the new member. A significant complaint in his original application was about the fairness of that procedure, and his concern that he had not been able to present his claims to Mr Norman.
Counsel for the Minister referred me to Liu & Anor v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541 (“Liu”), where the Full Court considered the relevant provisions governing reconstitution of the Tribunal, and held that an applicant has no right to be invited to a hearing in circumstances such as the present. I accept that I am bound by its decision. It has been applied in several single justice cases including NADG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 893, SXFB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 296, SXXB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 537, and SZFHK v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 156.
In all of those cases, however, the applicant was advised about the reconstitution of the Tribunal and was invited to put forward new material. This did not happen in the present case. Their Honours in Liu, although finding no right to attend a further hearing, noted that the Tribunal as reconstituted had a discretion to appoint a rescheduled hearing (supra at [54]). Obviously, the Tribunal also has a discretion to invite the applicant to consider whether he wished to request this opportunity. It may be consistent with Liu that a Tribunal might have a duty, as well as a power, to consider one of these procedures (c.f. Gleeson CJ in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 at [9] and [11], and compare Morales v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 374 at 388 and following).
Since I have found a clearer reason for remitting the matter, I do not need to explore this area of the law further in the present case. I also do not need to decide whether there is evidence before me that the present Tribunal erred in its procedural discretions by not considering whether it would be fair to the applicant, and necessary for its own ability to decide the credibility of his refugee claims, to invite him to give evidence to Mr Norman. As is illustrated in my further concerns in this case, the Tribunal itself may have benefited by appointing a further hearing, since this would have assisted the new member properly to understand the claims made by an applicant.
A further concern in the present case is that Mr Norman’s reasons for affirming the delegate’s decision contain a summary of the applicant’s statutory declaration which contains clear errors. In particular, he does not appear to have appreciated that there were three leaders of the organisation preparing the demonstration: the applicant, Z and W. He does not appear to appreciate that W led a separate cell of people, and that it was from W’s cell that the first three arrests were made.
I was concerned whether the Tribunal’s misapprehension of the history claimed by the applicant might have caused it to have failed materially to address his refugee claims, resulting in jurisdictional error of the type identified in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]. Although I received written submissions from the Minister’s counsel in relation to this issue, I did not find it necessary to ask counsel to address it orally, and I have not reached a conclusion on it.
The one issue on which I heard full argument from both counsel concerned whether a failure to observe s.424A(1) of the Migration Act was shown by the Tribunal’s reasoning that a delay, between the date that the applicant obtained a “valid visa to Australia” and his departure from China, reflected adversely upon the credibility of his claim that he was a person of interest to PRC authorities both prior to and subsequent to his departure.
Since the Tribunal delivered its decision, the law in relation to the requirement to put information providing “the reason, or a part of the reason, for affirming the decision that is under review” under s.424A(1) significantly changed as a result of the decisions of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 and the Full Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”). It is common ground that neither of the members constituting the Tribunal served such a notice on the applicant in relation to any particulars of information.
The Tribunal’s reasoning in relation to the period of delay which it thought was inconsistent with the applicant’s claims was:
The applicant claimed that after his dismissal from his employment around August 2003, he attended at least 5 demonstrations in the PRC. He confirmed he was never detained by the PRC authorities for having attended the demonstrations, nor for any other reason, prior to his departure from the PRC. However, the applicant claimed to have befriended a named person who was ‘considered the leader’ of a group of unemployed persons in the PRC. The applicant claimed he ‘joined this group sometime after he had been dismissed and on his suggestion, a protest had been organised. The protest was originally to take place in order to block or delay the trains on a main rail line in January 2004, but this date was subsequently changed to February 2004. Two days before the date the protest was due to take place in February 2004, three members of the group to which the applicant had belonged had been detained by the PSB [on 6 February 2004]. In his written claims, the applicant stated that while the arrested persons did not know anything about him, they knew the group leader.
Between the period 6 and 15 February 2004, further members of the group to which the applicant claimed to belong were also arrested. At the Tribunal hearing it was put to the applicant that he had a valid passport and a valid visa to Australia since mid January 2004, accordingly, why did he not ‘flee’ earlier than 17 February 2004 as claimed. The applicant did not for instance, claim to have gone into hiding prior to his departure. The applicant claimed ‘we thought we could re‑schedule the protest’ [the applicant had previously implied that the protest did not proceed on the rescheduled date]. When asked again, he claimed ‘he did not wish to leave his home or family.’
I accept that a person may be reluctant to leave his home and family. That said, if the applicant really had an imminent and real chance of being persecuted as claimed, I would have suspected he would have sought to protect himself at the earliest opportunity. The applicant waited almost two weeks after the relevant three members of his group had been arrested before he departed the PRC [this notwithstanding he had a valid passport and visa to Australia from mid January 2004]. This was also during a period when other members of the group to which he claimed to belong were being ‘rounded up by the PRC security’. Further, and notwithstanding other members of the group were being detained between 6 and 15 February 2004, the applicant did not even ‘go into hiding’ at any time prior to his departure. Accordingly, I am not satisfied the applicant was of any interest to the PRC authorities prior to his departure from the PRC. [emphasis added]
Counsel for the Minister accepted that the Tribunal’s conclusion in the last sentence of the above passage, that is, that it was not satisfied that the applicant was of any interest to the PRC authorities prior to his departure, rested in part upon its earlier finding shown in bold in the extract above. He also accepted that one piece of information upon which the Tribunal relied when making that finding was information that the applicant “had a valid passport and visa to Australia from mid January 2004”.
He contended, however, that particulars of this information were not required to be given to the applicant under s.424A because it was subjected to the exclusion of that obligation under s.424A(3)(b). This would arise if I were satisfied that the information as to the date when the applicant had his Australian visa was information which the applicant “gave for the purpose of the application”, being his review application (see SZEEU (supra) at [9], [154] and [184], following Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27).
Counsel for the Minister also contended that, even if this information were not covered by the exclusion, the Tribunal’s reasoning which used this information was not “the reason, or a part of the reason” for the Tribunal affirming the delegate’s decision.
I shall address his first contention first.
Whether the applicant “gave” the date of receiving his Australian visa to the Tribunal for the purpose of the review.
As appears in the passage I have extracted above, the source of this information for the Tribunal was stated to have been the transcript of the hearing conducted by Mr Hoysted. The Tribunal’s reasoning accepted the factual contention put by Mr Hoysted to the applicant, when seeking an explanation as to why he waited before departing China. Implicitly the Tribunal considered the applicant’s explanation for his delay, and rejected it. Its reasoning therefore was that the period of waiting was inconsistent with the truth of his claim to have been a person of interest.
The relevant part of the transcript was (emphasis added):
Mr Hoysted: So there were people from your group being arrested all the time, from 6 February to 15 February, is that right?
Interpreter: Yes.
Mr Hoysted: Mr [Applicant], why didn’t you immediately leave China because on 7 January 2004 you got a passport with a valid visa to go to Australia. You could have left at any time?
Interpreter: Actually this visa is just for me, it’s like a last resort. Initially I did not want to leave home. I got this visa just as a last resort.
Mr Hoysted: Presumably if you thought you were at any risk of being arrested by them, Mr [Applicant], you would have left?
Interpreter: Yes.
Mr Hoysted: Why didn’t you? Why did you wait until mid‑February, you waited over a month after the granting of your visa before you wanted to leave, Mr [Applicant]. It doesn’t suggest that you thought you were at any risk of real harm?
Interpreter: When I first got my visa that sort of thing had not happened yet. It was later that I had no alternative but to leave.
Mr Hoysted: Why is that? What changed, Mr [Applicant]? I can’t see what has changed?
Interpreter: Because on 6 February, after the three people got arrested we had to cancel the activity on the 8th but then we thought we could still change the value [sic: venue] and the date and do the organised activity once again somewhere else.
Mr Hoysted: So what changed, Mr [Applicant]? Why are you here if you thought you were safe from arrest, what has changed?
Interpreter: If I go back then definitely that will happen.
Mr Hoysted: What I don’t understand is why, Mr [Applicant]? You have been doing demonstrations, all that sort of stuff, no one seemed the least bit interested in arresting you. Why would it be different now? They seem to arrest everybody else. They don’t arrest you, they know you have got a passport, they know – you don’t do anything about it. What is different now?
Interpreter: The reason why I have not been arrested is because I had escaped and came to Australia.
Mr Hoysted: What is different, Mr [Applicant]? They had months to arrest, you Mr [Applicant], and they didn’t seem the least bit interested in you? And nor did you seem concerned about being arrested, otherwise you would have left home.
Interpreter: I only left at the last minute.
Mr Hoysted: Why is it the last minute? What is it that changed on 15 February, or whatever it was, that made that much difference? I can’t understand that at all at the moment.
Interpreter: Because on 6 February three in our group got arrested, they then confessed to the public security people and told them about the people, the rest of the people in the group and so after that, one after another in our group got arrested.
Mr Hoysted: You see, Mr [Applicant], that is not very convincing either because how do you know that, Mr [Applicant]? How do you know they confessed?
Interpreter: Because initially when we carry out those activities it was very, it was kept very secret and but since the three got arrested, from what T told me, what he learned from his friend in the public security bureau, the three gave out a lot of our secrets to the public security people.
Mr Hoysted: If that is the case, Mr [Applicant], why didn’t you leave straight away? You waited another month, sorry, waited another week. Why didn’t you leave straight away? You had your visa, you had your passport.
Interpreter: Because I did not want to leave my home, to leave my family.
For present purposes, the significant part of this exchange is the question and answer to which I have given emphasis in the above extract.
It is common ground that Mr Hoysted did not have in front of him the applicant’s passport except to the extent that pages had been photocopied at an earlier time and were found on the Department file. It is also common ground that on the Department’s file there was reference to the date of the applicant’s visa, including a reference in the applicant’s own visa application to his visa having a date of issue “07‑Jan‑2004”. Prima facie, therefore, the source of Mr Hoysted’s information as to the date of the visa was not information given by the applicant to the Tribunal for the purposes of his review application but was “prior” information found on the DIMA file. I find that this was relevantly the only source of that information when it was used by Mr Hoysted to put the question of delay to the applicant, and then by Mr Norman as part of his reasoning which I have referred to above.
Counsel for the Minister argued that the applicant’s response to the contention of My Hoysted “you could have left at any time”, contained an implicit affirmation of the truth of the information as to the date of the visa, which was part of what was put to the applicant. However, I do not consider that this is a proper reading of the transcript. The applicant’s response may have accepted the truth of the contention as to the date which was put to him, but in my opinion it did not amount to a proffering of that information to the Tribunal so as to make it information “that the applicant gave for the purpose of the [review] application”.
The situation is comparable, in my opinion, to the situation I found in a reserved decision in SZDIL & Ors v Minister for Immigration [2006] FMCA 431 (“SZDIL”). At [21]‑[43], I discussed the evidence in that case in the light of SZEEU and subsequent authority. In that case, the Tribunal had put to the applicant two dates suggesting a delay in application for a protection visa and the applicant had said “correct”. The present case contains a weaker response than this. In SZDIL I considered that the situation fell within propositions adopted by all three members of the Full Court in SZEEU that:
“the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b)”. (See Moore J at [20], Weinberg J agreeing at [157] and Allsop J agreeing at [218]‑[226]).
I shall not repeat the lengthy discussion I gave in SZDIL of this and other passages in SZEEU. My discussion in that case also considered the implications of reasoning by Moore J at [91] with whom Weinberg J agreed at [173] and Allsop J agreed at [264], in relation to one of the appellants in that case, SZDXA, where their Honours found that information about that applicant entering Australia on a business visa had been given to the Tribunal in the course of his evidence to the Tribunal, as well as being found in the visa application. Moore J in that case found:
Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source.
Counsel for the Minister referred to the discussion of that paragraph by Kenny J in SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627. In particular, he referred me to her Honour’s proposition at [35] that “SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b)”, and submitted that this was binding on me and was inconsistent with my reasoning in SZDIL.
There are two difficulties with this submission. The first is that her Honour’s proposition does not, in my opinion, provide the ratio decidendi of her judgment. I shall explain this below. The second is that Kenny J does not say, and does not purport to say, that SZEEU establishes a principle of law that “where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s.424A(3)(b)”. Kenny J said only that SZEEU at [91] “provides support” for that proposition. However, other parts of SZEEU, upon which I relied in SZDIL, “provide support” for the converse proposition (see: in relation to SZBMI: Moore J at [20], Allsop J at [157] and Weinberg J at [219]; in relation to SZEEZ: Moore J at [48], Allsop J at [239], Weinberg J agreeing at [169], and c.f. Weinberg J’s general comments at [179]; and in relation to SZEOP: see Moore J at [67]‑[69], Allsop J at [254], Weinberg J agreeing at [171]).
I accept that the ratio of Kenny J’s judgment is binding upon me, except to the extent that it is inconsistent with SZEEU, but do not accept that it reveals error in my previous reasoning. I note that the Minister did not appeal from my decision in SZDIL. Moreover, reading her Honour’s proposition in its context in her reasoning, it is apparent that she had the same understanding as to the effect of [91] in SZEEU as I had in SZDIL. Moore J’s discussion in [91] concerned a case where an applicant gave to the Tribunal additional information on the same topic as information given in the visa application. In the case before her Honour, the appellant gave to the Tribunal more details of his education in India, which the Tribunal eventually used in support of a relocation finding (see [7], [18], [23], [30]‑[36]). In her conclusions, she said:
The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant’s visa application in discussing some aspects of his history with him. …
It is plain enough from the transcript of the Tribunal hearing that the appellant separately and specifically gave detailed information concerning his education and employment to the Tribunal.
The present case is plainly, in my opinion, in a different situation and falls on the other side of the line which is required to be drawn by SZEEU, and to which I referred in SZDIL.
I therefore reject the contention that the applicant gave to the Tribunal the date of his Australian visa for the purposes of the review when responding to Mr Hoysted’s questions at the hearing.
Counsel for the Minister also submitted that the applicant gave this information to the Tribunal at an earlier time in the course of his submission in support of his review application. He submitted that it did not matter that the Tribunal in fact probably took the information from the DIMA file, if in fact the applicant had also given it to the Tribunal at some point of the review proceeding. I do not need to address that contention in relation to its legal correctness. This is because, in my opinion, it does not have a factual basis in the present case.
Counsel submitted that the applicant gave the date of his Australian visa in his written submission to the Tribunal, where he repeated some paragraphs from his statutory declaration in the manner I have described above. He pointed out that in these paragraphs the applicant said that at some point at the end of 2003 or the beginning of 2004 he had “asked T to help me got a foreign visa in the mean times”. Counsel submitted that later in the statutory declaration, after the applicant recounted the sudden arrests of the first three people from W’s cell on 6 February 2004, the applicant said: “the situation became worse and worse … (T has already gotten a visa for me)”. He submitted that the Tribunal may have drawn an inference from that narration as to the date when the visa was obtained.
However, in my opinion, the material could have only told the Tribunal that the applicant obtained a visa at some point between late 2003 and 6 February 2004. I cannot find in the statement repeated to the Tribunal the particular information that the applicant had “a valid visa to Australia since mid January 2004”.
As I have found above, in my opinion there was only one source for that information, and it was information found on the DIMA file, which had been put to the applicant at the hearing by Mr Hoysted. I therefore reject the first contention of the Minister’s counsel.
Whether the prior information was a “reason” for affirming the delegate’s decision.
Counsel for the Minister submitted that the Tribunal’s reasoning which I have extracted above, which drew adverse conclusions from the period in which the applicant waited before deciding to flee China, was a separate part of its reasoning, and that the subsequent reasoning of the Tribunal provided “a basis for the Tribunal decision which can be seen to be entirely independent of the failure to follow s 424A” (see Allsop J in SZEEU at [233]).
The Tribunal’s reasoning after making its finding that it was not satisfied that the applicant was of any interest to the PRC authorities prior to his departure from the PRC was:
Importantly however, I am not satisfied the PRC authorities would have any interest in the applicant should he return. I do not accept the applicant was, or would be perceived to be, a sufficiently prominent member of the relevant group in the PRC. His limited involvement [between August 2003 and February 2004], as well as the minimal detail he provided at the Tribunal hearing, of his and the groups activities in the PRC, did not satisfy me he had much if any role in the relevant group at all. Even if I accept he had attended at least five demonstrations prior to departing the PRC, he confirmed that he had never been arrested. He also made no claim to have come to the adverse attention of the PRC authorities prior to his departure. I can accept that in an appropriate case, an applicant may for Convention reasons, come to the adverse attention of the authorities in their country of origin for reasons of one incident. That said, I am satisfied the applicant’s involvement, or contribution, to the alleged group, was so minimal, if he was involved at all, that there is only a remote chance he would be of any interest to the PRC authorities, or anyone else, for reasons of this alleged involvement, should he return to the PRC.
Accordingly, I am satisfied the applicant’s claims to have fled two days before the police attended his home in the PRC to arrest him; and that a team of investigators had been set up to investigate his group, are recent inventions submitted for the sole purpose of enhancing his claim to invoke protection obligations in Australia. Therefore, with respect to these and any other evidence to which the applicant alleged to have become aware since arriving in Australia, I am satisfied there are reasonable grounds to reject same.
Finally the applicant claimed there is no freedom of speech in the PRC; there is no democracy in the PRC; and there are no human rights in the PRC. Based on the evidence the applicant provided, I am not satisfied the strength of the applicant’s alleged convictions are such that the mere oppression of same would constitute persecution for this applicant, nor that they are such that he may give voice to same and come to the adverse attention of the PRC on return, with respect to these matters.
Accordingly, I am not satisfied the applicant has a well founded fear of persecution for a Convention reason in the PRC.
Counsel argued that the first of the above paragraphs provided a separate reason for the Tribunal affirming the delegate, being its satisfaction that:
the applicant’s involvement, or contribution, to the alleged group, was so minimal, if he was involved at all, that there is only a remote chance he would be of any interest to the PRC authorities, or anyone else, for reasons of this alleged involvement, should he return to the PRC.
I have difficulties understanding the Tribunal’s reasoning in this paragraph, and further difficulty reading it as providing a separate line of reasoning unaffected by its previous finding about the applicant’s history in China before his departure.
In relation to the rationality of its reasoning, the Tribunal’s statement that “he also made no claim to have come to the adverse attention of the PRC authorities prior to his departure” seems to fly in the face of a manifest implication of his claims. The Tribunal’s statement can only be understood consistently with the history claimed by the applicant, if the Tribunal construed the history as showing that the applicant first came to the “adverse attention of the PRC authorities” on the day after he left China, i.e on 18 February 2004, when he claimed police came to his home with an arrest warrant. However, if the point made by the Tribunal is read in that fashion, it is difficult to see how it could have been regarded as giving support to the Tribunal’s adverse conclusion that the applicant faced only “a remote chance he would be of any interest” if he returned.
I need not address further the rationality or reasonableness of the Tribunal’s fact finding in this case. This is because I reject the contention that its reasoning in relation to the position of the applicant if he returned to China was presented by the Tribunal as a separate reason for affirming the delegate’s decision, unaffected by its adverse conclusion that his delayed departure suggested that he was not of “any interest to the PCR authorities prior to his departure from the PRC”.
In my opinion, the Tribunal’s opening words “importantly however” do not reveal such a disjunction. Rather, they show the Tribunal turning from an assessment of the history prior to departure, to address the more immediate issue posed by the Refugees Convention as to his position in the future if he should return. But as many authorities in the High Court have pointed out, a Tribunal’s conclusion about a risk on return is commonly based upon an assessment of the prior history (c.f. Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 387, 390‑391, 399, 408, 415 and 431, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574‑576 and Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at [39], [51], [73], [83]).
In my opinion, the course of the Tribunal’s reasoning in these paragraphs shows it turning from a rejection of the applicant’s claimed prior history to address the future. I also consider it is probable that it has drawn upon its previous adverse finding on the history, when finding that the applicant would not be of any interest should he return to China. Certainly, in the language of Allsop J in SZEEU at [234]:
I am unable to discern such a clear basis upon which the failure to follow s 424A had no possible effect. The influence of credit appears to me to pervade the whole of the reasons of the Tribunal.
In the present case, this becomes apparent in the further paragraph of the Tribunal’s reasons with the opening word “accordingly”, where the Tribunal cements its adverse assessment of the applicant’s claims by concluding that they were all “recent inventions submitted for the sole purpose of enhancing his claim”. In my opinion, the Tribunal’s reasons, reading them in as benign a fashion as possible, have drawn upon its opinion rejecting the applicant’s explanation for his waiting to leave China as part of its reasons for rejecting the credibility of his essential refugee claims.
For the above reasons, I do not accept the arguments presented by counsel for the Minister, and I am satisfied that there was in the present case a jurisdictional error arising from the Tribunal’s failure to serve a notice under s.424A(1). It was not submitted that there was any discretionary reason why I should refuse relief to the applicant, and I consider that he is entitled to it.
I certify that the preceding fifty‑two (52) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 27 July 2006
CORRECTION
Paragraph 21 line 2 – after the words “concerned whether”, insert the words “a failure to observe s.424A(1) of the Migration Act was shown by”.
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