SZGHZ v Minister for Immigration

Case •

[2006] FMCA 1170

•

21 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHZ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1170
MIGRATION – Refugee – allegations of bias and bad faith not made out – Tribunal’s doubts are part of the Tribunal’s thought processes – application properly invited to a hearing before the Tribunal – Tribunal relied on information not provided to it for the purposes of the review – information formed part of its decision – Tribunal did not comply with its obligations under s.424A(1) – jurisdictional error – application remitted.
Migration Act 1958, ss.36(2), 65, 424A, 424A(1), 424A(3)(a), 424A(3)(b), 425A(3), 426A
Migration Regulations 1994, Regulation 4.35D
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
NAHI v Minister for Immigration Multicultural Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
SZHKM v Minister for Immigration & Anor [2006] FMCA 835
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Applicant: SZGHZ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1255 of 2005
Judgment of: Nicholls FM
Hearing date: 26 June 2006
Date of Last Submission: 23 June 2006
Delivered at: Sydney
Delivered on: 21 August 2006

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondents: Ms. S. Mason
Solicitors for the Respondents: Phillips Fox

ORDERS

  1. The name of the first respondent be amended to read “Minister for Immigration & Multicultural Affairs”.

  2. A writ of certiorari issue, quashing the decision of the second respondent.

  3. A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1255 of 2005

SZGHZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application filed in this Court on 16 May 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 March  2005 and handed down on 15 April 2005 affirming the decision of a delegate of the respondent Minister made on


    13 January 2005 to refuse a protection visa to the applicant.

  2. The applicant is a citizen of People’s Republic of China who arrived in Australia on 21 December 2004 and lodged an application for a protection visa with the first respondent's Department on 6 January 2005. On 13 January 2005 a delegate of the respondent Minister refused to grant a protection visa, and on 1 February 2005 the applicant applied for review of that decision. The applicant’s claims are contained in his application for a protection visa at Court Book (“CB”) 1 to CB 26, particularly in a statement at CB 19, and in his application for review at CB 41 to CB 44. The applicant claimed that his wife was a leader of Falun Gong in his town, and that as a result he had become a member of Falun Gong. He claimed that in September 2003 his wife was arrested and sentenced to two years imprisonment. He also claimed that he then became head of the Falun Gong movement in his town, and continued to organise Falun Gong activities. Further, the applicant claimed that in August 2004 the police “came to arrest ‘us’”, detaining him for 4 days, subsequent to which he claimed “he had to report to the police once a week”.

  3. On 21 February 2005 the Tribunal wrote to the applicant advising that it had considered all the material before it, but was unable to make a favourable decision on that information alone (CB 47). The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 23 March 2005. The applicant was advised that if he did not attend the hearing, and a postponement was not granted, the Tribunal may make a decision in his case without further notice. According to the Tribunal’s record, the “Checklist” indicated at CB 49 (“No Reply to Hearing Invitation, 424 or 424A letter”), that no response was received from the applicant, and the Tribunal’s letter was not returned to it. Further, the “Checklist” indicated that the applicant did not have an adviser and had not provided a contact telephone number to the Tribunal, so presumably therefore he could not otherwise be contacted by the Tribunal.

  4. The applicant did not appear before the Tribunal on the scheduled hearing date (CB 60 to CB 61). In the circumstances, and pursuant to s.426A of the Migration Act 1958 (“the Act”), the Tribunal proceeded to make a decision without taking any further action to enable the applicant to appear before it. The Tribunal had regard to the Departmental file, which included the protection visa application and the delegate’s decision record, as well as the material referred to in the delegate’s decision.

  5. The Tribunal's “Findings and Reasons” are set out in its decision record reproduced at CB 61.3 to CB 62.5. The Tribunal:

    1)Accepted that the applicant was a citizen of China (CB 61.3).

    2)Was “unable to enlarge on or test the limited information contained in the application” (CB 61.5).

    3)Could not be satisfied that the applicant was a Falun Gong practitioner, or that he was detained in August 2004 (CB 61.5).

    4)As to the applicant’s claim to be a leader of Falun Gong, accepted the independent country information contained in the delegate’s decision record, which indicated that the treatment of ordinary members of Falun Gong is very different to the treatment of prominent members (CB 61.6). But unlike the delegate, the Tribunal found that the applicant’s claims put him and his wife in the category of “prominent members”. The Tribunal noted that despite this he stated he had been detained for four days and released, yet his wife was sentenced to two years in prison. Therefore, the Tribunal was relevantly unable to accept the applicant’s claims in the absence of an opportunity at a hearing to clarify this “seeming inconsistency” (CB 61.7 to CB 61.9).

    5)Noted also that the applicant was of no interest to the Chinese security authorities as it noted that he was able to leave China freely “using a passport in his own name” (CB 61.9).

    In the circumstances outlined above the Tribunal was unable to accept that the applicant was a Falun Gong practitioner, and that there was a real chance of his suffering harm amounting to persecution for a Convention reason if he were to return to China in the reasonably foreseeable future.

  6. The applicant’s original application to this Court, filed on 16 May 2005, and his amended application, filed on 22 August 2005, contain much the same complaints as contained in his further amended application filed on 28 November 2005, which asserts the following grounds:

    “1. The Tribunal had bias against me, which arises from the following statement: “In August 2004, police came to arrest “us” (he did not indicate to whom “us” referred; at this date, his wife would have still been imprisoned.).”

    The Tribunal assumed that “us” indicates myself and my wife, and began to have bias against me.

    2. The Tribunal mentioned: “As to his claim to be a leader of Falun gong, the Delegate’s decision contins [sic: contains] independent country information which I acdept [sic: accept] which indicate that the treatment of ordinary members of Falun Gong is very different to the Treatment of prominent members. Contrary to the Delegate’s finding on this matter, I find that the applicant’ claims put him and his wife) in the latter category. Yet he stated that he was detained for 4 days and released, whereas his wife was sentenced to two years in prison. In the absence of an opportunity at hearing to clarify this seeming inconsistency, I am unable to accept his claims regarding himself.”

    My wife was found guilty of being a leader of Falun Gong while I was detained but was not found with evidence, I don’t think this seeming inconsistency, just the Tribunal had bias against me and misunderstood my claims. The Tribunal did not send me a letter telling me this doubt, and this may be the reason why the Tribunal would affirmed the decision from DIMIA.

    3. I could leave China freely using a passport in my own name does not mean that I would not be persecuted upon my return to China.” 

  7. The applicant appeared unrepresented before the Court and was assisted by an interpreter in the Mandarin language. Ms. Mason appeared for the respondents. At the hearing before the Court the applicant:

    1)Pressed that the Tribunal was biased against him.

    2)Stated that he did not have the opportunity of explaining to the Tribunal what he saw as the “misunderstanding” by the Tribunal of his application and that the Tribunal did not notify him that he might be rejected due to the Tribunal's “misunderstanding”.

    3)Took issue with the Tribunal’s finding that he was able to use a passport in his own name to leave China and that therefore he could not face persecution when he returned to China. 

  8. The applicant’s first complaint is that the Tribunal was biased against him. In support of this assertion the applicant refers to the Tribunal's decision record at CB 61.3 where the Tribunal states:

    “In August 2004, police came to arrest “us” (he did not indicate to whom “us” referred; at this date, his wife likely to have still being imprisoned).”

    Before me the applicant asserted the he believed the Tribunal was biased because it had not indicated to him who the “us” was, and that he did not say that his wife was part of the “us” and actually that he had indicated that the “us” referred to himself and other members of Falun Gong.

  9. The applicant also takes issue with the Tribunal's decision record at CB 61.7 to CB 61.8, which he also saw as an example of the Tribunal's bias against him:

    “As to his claim to be a leader of Falun Gong, the Delegate’s decision contains independent country information which I accept which indicates that the treatment of ordinary members of Falun Gong is very different to the treatment of prominent members. Contrary to the Delegate’s finding on this matter, I find that the applicant's claims put him (and his wife) in the latter category. Yet he stated that he was detained for 4 days and released, whereas his wife was sentenced to two years in prison. In the absence of an opportunity at hearing to clarify this seeming inconsistency, I am unable to accept his claims regarding himself.”

  10. For the applicant’s benefit, I should at first note that an allegation of bias, or bad faith, on the part of a Tribunal is an extremely serious matter. An allegation of actual bias or even the apprehension of bias, must be supported by evidence. Such an allegation implies that the Tribunal member, by their attitude and conduct, can be shown to have preset in their mind the ultimate outcome of the matter. In particular, allegations of actual bias carry with them the onus that they must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he or she is “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. I note in this regard that the applicant would need to present more than just a statement or a conclusion reached by the Tribunal to support this claim. Allegations of the apprehension of bias must be reasonable to succeed. The standard of reasonableness is determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [32]).

  11. The applicant’s assertion that the Tribunal's statement at CB 61.3 is evidence of the Tribunal's bias against him is not made out. I note firstly that the Tribunal was referring to the claims made by the applicant. The reference to police coming to arrest “us” is clearly a reciting of the applicant’s claims and does not directly form part of the Tribunal’s “Findings and Reasons”. The Tribunal's recitation of this claim clearly derives from what the applicant put in his protection visa application in answer to the question seeking his reasons for claiming to be a refugee (CB 19). A plain reading of what the applicant himself put in his statement reveals that the Tribunal's observation, which clearly in context was part of the limited information contained in the application which it would have wanted the applicant to have “enlarged upon” during a hearing, was open to it. The applicant did not provide any detail as to who the “us” referred to. The Tribunal observed that in any event it could not have referred to the applicant’s wife as, on the applicant's own information, she had been imprisoned in September 2003. I cannot see that the Tribunal misunderstood who the “us” referred to, in the sense that the applicant appears to claim now (that the Tribunal took the “us” to refer to him and his wife). This is plainly not so on a reading of what the applicant put in his protection visa application and on how the Tribunal represented this in its decision record. I cannot see that this reference, nor the reference in the Tribunal's decision record, as set out in ground two, show bias on the part of the Tribunal as understood by relevant authorities enunciating the relevant tests. On what is before me I accept the respondent’s submission that neither ground one nor two make out any allegation of bias, nor can I see any such bias disclosed in the Tribunal's decision record.

  12. Ground two in the further amended application also seeks to assert that the Tribunal failed to put to him “this doubt”, and that it should have done so because this may have been the reason that the Tribunal affirmed the delegate’s decision. To the extent that the applicant appears to complain in his further amended application that the Tribunal did not write to him telling him of its doubts, this appears in context to probably be a complaint that the Tribunal failed in its obligation pursuant to s.424A(1) of the Act to write to him and give him the opportunity to comment on these doubts. In this regard, I note and accept Ms. Mason's submissions that the Tribunal's doubts in so far as they were part of the Tribunal’s thought processes are not matters that it was required to put to the applicant. See SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”), at [65] per Moore J. and [206] per Allsop J. with reference to Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109, Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196, and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123. In this regard also, the Tribunal's decision involved the finding that it did not have sufficient information in order to find for the applicant. Section 65 of the Act provides that a protection visa must only be granted if the decision maker is satisfied, among other things, that the applicant, relevantly, satisfies the requirements as set out in s.36(2) and meets the definition of refugee contained in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol. On what was put before the Tribunal it could not be satisfied that the applicant met the requisite criterion for the grant of a protection visa. No jurisdictional error is revealed merely because the facts that were put forward by the applicant did not cause the Tribunal to be satisfied (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF of 2003”)).

  13. The applicant pressed before the Court that he was not given the opportunity to comment prior to his application being rejected by the Tribunal. In addition to what is set out above, the applicant in any event was given the opportunity to attend a hearing before the Tribunal. By its letter of 21 February 2005 (CB 47 to CB 48) the Tribunal clearly put the applicant on notice that on the information before it, it was unable to make a decision favourable to him. He was invited to an interview for the express purpose of providing evidence and argument in support of his claims. The Tribunal had clearly put to him that the claims were not of a sufficient character as to cause it to respond in a favourable way. The applicant stated before me as reasons for not attending the hearing that, firstly, he did not have “any documents” of proof of his identity to show the Tribunal. Secondly, that he was “really afraid that the Chinesee police would come to take me back to China.” None of this was put to the Tribunal as a response to the hearing invitation or even in anticipation of it, given the Tribunal’s letter of
    2 February 2005 (CB 45 to CB 46) to the applicant. The Tribunal sent a letter of invitation to the applicant, after having explained the relevant process (see also the letter reproduced at CB 45 to CB 46), and the applicant, without explanation, did not attend.

  14. The Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 is authority for the proposition that the Tribunal has the power to proceed with an application pursuant to s.426A where a hearing invitation has been properly given under the Act. In this regard, I note that with reference to s.425A(3) of the Act (the effect of which is that a period of notice is required in relation to an invitation to appear before the Tribunal and this period is prescribed by regulation 4.35D of the Migration Regulations 1994 (“the regulations”)) the statutory notice periods have been complied with. Pursuant to regulation 4.35D the notice period starts when the applicant receives notice of the invitation to appear before the Tribunal, and ends at the end of 14 days after the day on which the notice is received. The time between the date of the hearing invitation (21 February 2005) and the hearing date (23 March 2005) was in excess of the minimum time prescribed and this is the case even when allowing, in addition, for the 7 working days required for deemed receipt of the invitation to be effective.

  15. In this regard, I note also that similarly, where an applicant failed to appear at a hearing before the Tribunal, having been put on notice that the Tribunal was not able to be satisfied on the material before it, that a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. The applicant was put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of oral submissions or written evidence at a hearing. The applicant did not avail himself of this opportunity. In these circumstances the applicant can base no complaint on the fact that on what was before it, the Tribunal was not able to be satisfied.

  1. The applicant's third ground of complaint is a mere assertion that just because he could leave China freely using a passport in his own name did not mean that he would not be persecuted on his return to China. The applicant was unable to provide anything further in support of this claim. As far as the claim therefore is articulated, I agree with Ms. Mason that the complaint, as put, does not demonstrate any jurisdictional error on the part of the Tribunal, but is an attempt to agitate the merits of the Tribunal's decision. The applicant, in this regard, is seeking impermissible merits review. (See NAHI v Minister for Immigration Multicultural Indigenous Affairs [2004] FCAFC 10 at [10] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

  2. However, given that the applicant was unrepresented before me it is necessary to consider whether the Tribunal may have fallen into error in relying on information which was a part of its decision that was not put before it for the purposes of the review and was not put to the applicant pursuant to s.424A, as understood within the relevant authorities of Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (“Al Shamry”) and SZEEU and should have been dealt with by the Tribunal in the manner set out by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”).

  3. The relevant part of the Tribunal's decision record in this regard is reproduced at CB 61.9:

    “I note also that he was able to leave China freely using a passport in his own name. I find that he is therefore of no interest to the Chinese security authorities.”

    It is not exactly clear, on the material before the Court now, as to where the Tribunal found the information relating to the applicant’s passport from which it derived its conclusion that the applicant was able to leave China freely using a passport in his own name. There is nothing to show that the applicant submitted his passport to the Tribunal. In this regard the applicant did not attend the hearing before the Tribunal and I note that it is the Tribunal’s usual direction to an applicant attending a hearing that their passport should be brought to the hearing (CB 47.7). Nor does it appear that the applicant provided his passport to the first respondent’s Department.

  4. Ms. Mason submitted that it seems that the Tribunal drew an inference from what is set out at CB 15, which appears to be a photocopy of two airline boarding pass stubs in the applicant's name, as an attachment to, and part of, the applicant’s application for a protection visa. In Ms. Mason's submission this “seems to correlate with the thinking of the Tribunal”. She referred me to CB 50 where two emails are reproduced that indicate that there was “no passport” in relation to the applicant before the Tribunal. This appears to be consistent with the applicant's protection visa application at CB 15, where in answer to question 29, the applicant states:

    “The tourist guide took away my passport. I could not remember the details of my passport.”

    It may be therefore that the boarding passes were provided in these circumstances.

  5. Ms. Mason conceded that there was no notice given in respect to the passport, or the inference that was drawn from the boarding passes pursuant to s.424A of the Act. However, her submission was that this situation falls within the exception articulated in SZEEU by Allsop J. at [233]:

    “If it can be shown that there was a basis for the Tribunal's decision which can be seen to be entirely independent of the failure to follow s.424A in my view that is sufficiently analogous to the first of the alternatives referred to in [58] of Aala to warrant withholding of relief.”

  6. In reliance on this Ms. Mason submitted that although no jurisdictional error is conceded, that even if there had been such an error arising out of the failure to comply with s.424A in this case, that based on what His Honour said at [233], if it can be shown that there is a basis which is seen to be entirely independent of this failure, then it is sufficient to warrant a withholding of relief and that such circumstances arise out of the clear legislative provision in the Act (s.65 and s.36(2)) to refuse an application where a Tribunal cannot be satisfied that the legislated requirements have been met.

  7. Ms. Mason relied on relevant authorities: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 (“SJSB”) at [15] to [16] and NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5] and VSAF of 2003 at [17] in support of the proposition that such a legislative mandate exists to require a positive state of satisfaction being reached. She also referred the Court to a recent Judgement of Smith FM, SZHKM v Minister for Immigration & Anor [2006] FMCA 835, where she had made similar submissions on this same point. She particularly referred me to paragraphs [22], [23] and [31] of His Honour’s Judgement. Her submission was that Smith FM was sufficiently satisfied in the matter before him (in similar circumstances to what is before the Court now) that where the mandate exists, and essentially where a Tribunal is required to reach a requisite state of satisfaction, when there is non-attendance at a hearing by the applicant, and there is not sufficient information for the Tribunal to be satisfied, that this is sufficient, for the purposes of paragraph [233] of SZEEU, to be a separate stream and an entirely independent basis for the decision. Therefore, even if there is a s.424A error, the application was “mandated” to be refused in any event and as such His Honour did not overturn the Tribunal's decision.

  8. In looking at the Tribunal decision before me, and in particular its “Findings and Reasons” as they begin at CB 61.4, Ms. Mason submitted that the Tribunal:

    1)Accepted that the applicant was a Chinese citizen.

    2)Was satisfied that the applicant had been informed that the Tribunal could not make a favourable decision on the basis of the information that had been put before it, and that he was invited to a hearing which he did not attend.

    3)Was, as a result, unable to “enlarge”, or test, the limited information that had been put before it, and could not be satisfied that the applicant was indeed a Falun Gong practitioner, or that he had been detained in August 2004 as he had claimed.

  9. The submission was that from that point, having already rejected the possibility that the applicant was a Falun Gong practitioner, or that he had been detained, what the Tribunal then proceeded to do was to recite again the applicant's claims, and this is evident because they related to both Falun Gong and detention, remembering that they were claims which it had already rejected, and that it then concluded by stating (at CB 61.8):

    “In the absence of an opportunity at hearing to clarify this seeming inconsistency, I am unable to accept his claims regarding himself.”

  10. Ms. Mason submitted that the finding turned not on the inconsistency, but again on the inability to be satisfied. Further, the Tribunal then makes the comment about the passport, which she correctly submitted it did not have before it in any event. She submitted that even if this did constitute a breach of s.424A, then there was already a sufficient and separate independent basis, that is, a basis which exists by virtue of the legislative mandate, with the effect that any such error did not require remittal to the Tribunal.

  11. Ms. Mason further explained that a number of lines can be drawn through the Tribunal's “Findings and Reasons”, and that in particular a line can be drawn where at CB 61.5 the Tribunal deals with the totality of the applicant's claims that he was a Falun Gong practitioner and that he had been detained, by saying that because of the limited information it could not be so satisfied. That a second line could be drawn where at CB 61.8 the Tribunal makes reference to the “seeming inconsistency” in what the applicant had put, and that the absence of an opportunity of a hearing led to its being unable to accept this claim because there was no opportunity to clarify the “seeming inconsistency”.

  12. She emphasised two aspects of this part of the decision record. Firstly, it was clear that the applicant's claims had already been rejected, but that the Tribunal dealt with one matter that appeared to be inconsistent in his claims. Secondly, it was not the inconsistency that was the reason for the decision, but the inability to accept the claim in the absence of a hearing to clarify the inconsistency (I should note here that this was clearly not an inconsistency between what was put in the protection visa application and what was said at a hearing, such as is otherwise dealt with in SZEEU). The Tribunal's reference, or its noting, at CB 61.9, in Ms. Mason's submission, was immaterial to what the Tribunal had already found, which was that it could not be satisfied on what the applicant had claimed that a protection visa should be granted.

  13. Ms. Mason's submission was that in the situation of a non-attendance at a Tribunal hearing and where there is some dissatisfaction, or inability to be satisfied as to the requisite matters because the applicant did not attend at the hearing, then this enlivens the “SJSB mandate” and that it is instantly a separate and independent basis for the purposes of SZEEU, and this is so with reference to paragraph [233] of Allsop J.’s Judgement. 

  14. It is clear that the Tribunal did not have before it the applicant's passport. There is nothing in the material before me to show that the passport was provided to the Tribunal, and indeed there is clear indication in the material that the applicant did not have possession of the passport so that he could have provided it to the Minister's Department, let alone the Tribunal. This is particularly clear with reference to CB 8 and that part of the application for a protection visa where the applicant makes a very clear statement to this effect, and also at CB 15 (see paragraph 19 above).

  15. In these circumstances therefore, the information on which the Tribunal relied to note that he had left China freely using a passport in his own name could not have been derived from the passport itself. On the material before me therefore, it is a matter of some conjecture as to where this information came from. The boarding pass stubs reproduced at CB 15 certainly show that a person with the applicant's name boarded a flight from Beijing to Seoul, and from Seoul to Sydney, with dates consistent with the applicant's stated date of arrival in Australia (see CB 15.4). Further, it is clear that in his protection visa application, at CB 23, in answer to relevant questions, the applicant stated that he left China legally and the only difficulty that he said that he had in obtaining a travel document was:

    “I paid a lot more money for my passport.” 

  16. In any event, what can be said is that however, and wherever, the Tribunal obtained this information, that is, that he was able to leave China freely using a passport in his own name, there is nothing before me to show (and nor is it contended now by the respondent) that the applicant provided this information to the Tribunal for the purposes of the review in such a way as to bring such information within the exception contained in s.424A(3)(b). The issue remains therefore as to whether, in applying what Allsop J. said in SZEEU at [233], with reference to an earlier decision of North J. in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33], that the failure to serve a notice in writing pursuant to s.424A(1) on the applicant in relation to this information would not lead to the Tribunal's decision being set aside on the basis that the finding, and the information on which it relies, more relevantly, were part of an “entirely independent” basis for the Tribunal's decision.

  17. In addressing this issue, and how it applies in the circumstances of the case before me, I am also guided by what His Honour Allsop J. said at [204] in SZEEU:

    “The assessment whether the Tribunal has complied with s.424A(1) requires close attention to the reasons of the Tribunal because it is the information that the Tribunal considers relevant that must be assessed in order to see whether prior to the decision being made it would be the reason or a part of the reason for affirming the decision.” 

  18. That the Tribunal used information in respect of which there was an obligation to provide a s.424A(1) notice is, in my view, evident in the case before me. A passport was not given to the Tribunal for the purposes of the review. The only source of the information that the applicant left China using a passport in his own name can only be derived, at best, from the protection visa application and the attached statement. SAAP requires the Tribunal to put this information (as it was relied on by the Tribunal) to the applicant and to have done so in writing. Al Shamry and SZEEU preclude, in the circumstances before me, the Minister from relying on the exception set out in s.424A(3)(b) from this requirement.

  19. It is also clear that at [215] and [216] of SZEEU His Honour Allsop J. clearly, in applying SAAP, found that it is only necessary that the information in question “be a part of the reason” and that it is necessary to “analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the Tribunal’s lack of satisfaction of the existence of protection obligations”.

  20. Specifically, in the case before me, Ms. Mason submits that the Tribunal's lack of satisfaction on what had been put before it was an entirely independent basis for the Tribunal’s conclusion. That while it may be that the reference to the passport information was a part of the decision as a whole, there was a separate and entirely independent basis in the Tribunal's decision record that derived from the legislative mandate relating to satisfaction, for affirming the delegate’s decision.

  21. On what is before me however, I am not persuaded that the conclusion stated by the Tribunal, that it could not be satisfied that the applicant was a Falun Gong practitioner, and that he had not being detained briefly in August 2004, does stand separate, and as an entirely independent basis for the Tribunal's decision. The Tribunal found at CB 61.9 that the applicant was of no interest to the Chinese security authorities. It specifically based this on its noting (see “I note also” at CB 61.9) that the applicant was able to leave China freely using a passport in his own name. The Tribunal made a positive adverse finding that the applicant was of no interest to the Chinese authorities. But what it had noted earlier was that in the absence of an opportunity at the hearing to clarify a “seeming inconsistency” it was unable to accept his claims. The “seeming inconsistency” related, in part, to his claim that he had been detained by the Chinese authorities (CB 61.8).

  22. The very claim (that is one of the two limbs of the claim) which the Tribunal initially said it could not be satisfied about, apart from the applicant's claim to be a Falun Gong practitioner, was that he had been “detained briefly in August 2004” (CB 61.6). That the Tribunal could not be satisfied that the applicant was detained by the authorities was clearly based on its inability to test the limited information that the applicant had provided in relation to that claim. However, I do not accept, in the context of how the Tribunal has set out its “Findings and Reasons”, that its lack of satisfaction was unaffected by its “also” noting that he was able to leave China freely, and that therefore he was of no interest to the Chinese security authorities. One of two critical claims made by the applicant in relation to which the Tribunal initially said it was unable to be satisfied on what was before it, was that he was of interest to the authorities, and in fact had been detained by them. I am not persuaded that the Tribunal's failure to follow the requirements of s.424A(1) as it related to the passport information can be seen to be entirely independent of the Tribunal’s finding that it could not be satisfied that the applicant had been detained briefly as he had claimed. Nor in the context of the Tribunal’s “Findings and Reasons” am I persuaded that the finding that it could not be satisfied that the applicant was detained was, itself, not affected by what the Tribunal ultimately noted (“also”: that he was able to leave China) that led it to finding that he was of no interest to the Chinese security authorities.

  23. That the Tribunal was left in a state of uncertainty due to the paucity of information such that it could not achieve the requisite level of satisfaction as required by s.65 and s.36(2) of the Act is clear. But what is also clear is that one of the limbs of the applicant's claim, that he had been detained, is not sufficiently entirely independent of the finding that he was of no interest to the Chinese security authorities. It was the Chinese security authorities to whom he would have been of interest had he been a Falun Gong practitioner, and by whom he would have subsequently been detained.

  24. In all of this I cannot see that the critical elements in the applicant's refugee claims can be, or were, separated out in the Tribunal's own analysis in rejecting those claims. The claims were, in my view, rejected for two interrelated reasons. One being the lack of satisfaction based on the limited information, and the other being that the applicant was of no interest to the Chinese security authorities. The Tribunal relied, in part, on information which needed to have been dealt with in the manner required by SAAP and Al Shamry and as explained in SZEEU.

  25. In all therefore, the Tribunal's decision reveals jurisdictional error in that it relied on information that had not been put before it for the purposes of the review, and which formed part of its decision, and in respect of which the Tribunal did not comply with its obligations under s.424A(1) as set out in SAAP. I do not accept on what is before me that this information and the finding which flowed from it can be shown to be entirely independent from the basis for the Tribunal's decision.

  26. The applicant’s matter should therefore be returned to the Tribunal for reconsideration according to law. Accordingly, I will make the relevant orders.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date: 21 August 2006

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