SZGSI v Minister for Immigration - [2006] FMCA 1541

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1541

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal failed to comply with its obligations under s.424A(1) of Migration Act 1958 (Cth) – whether Refugee Review Tribunal misstated evidence of applicant in finding that applicant’s fear of persecution was not well founded.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A(1); 474; pt.8 div.2

SZEEU v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 75 ALD 630
SZGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 431

First Applicant:

SZGSI

Second Applicant:

SZGSJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1803 of 2005

Judgment of:

Emmett FM

Hearing dates:

22 February & 10 October 2006

Date of last submission:

10 October 2006

Delivered at:

Sydney

Delivered on:

18 October 2006

REPRESENTATION

Solicitors for the Applicant:

Ms J. Kinslor, Christopher Levingston & Associates

Counsel for the Respondent:

Mr G. Johnson

Solicitors for the Respondent:

Ms E. Palmer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1803 of 2005

SZGSI

First Applicant

SZGSJ

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 May 2005.
The first named applicant was born on 15 May 1979 and claims to be from the People’s Republic of China (“the PRC”) and of Chinese ethnicity and Christian faith (“the Applicant”). The second named applicant is the Applicant’s husband and his application depends on the Applicant. Whilst both are applicants before this Court, I shall refer only to the Applicant.
The Applicant arrived in Australia on 25 October 2004, having legally departed from Gaoqi on a passport issued in her own name and a visitor’s visa issued on 8 October 2004.
On 5 November 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution from the Chinese government and the Public Security Bureau (“the PSB”) due to her Christian religion and participation in underground church activities, which included establishing a petrol station that operated as a secret liaison station of an unregistered or underground church. The Applicant claimed that she was the head of the liaison station, which was a secret place to receive and distribute religious materials and communicate with other religious groups.
On 22 November 2004, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 21 December 2004, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. Before the Tribunal, the Applicant also claimed she was a Shouter and that her husband managed the petrol station that operated as a secret liaison station.

On 18 May 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 11 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

The Applicant attended a hearing before the Tribunal and gave oral evidence. The Applicant’s husband, being the second named applicant, also gave evidence to the Tribunal.
In the statutory declaration in support of her primary application the Applicant made the following claims:
a)That she is a Christian actively involved in spreading the gospel in the PRC;
b)That her family are Christians and her family home had been used as a secret gathering place when she was growing up;
c)That, in June 1998, she was befriended by Ms H who invited her to join a Bible study group of about 20 people;
d)That, in September 1999, Ms H was arrested by police at a diesel oil wholesale shop where both Ms H and the Applicant worked;
e)That as a result of Ms H’s arrest, the Applicant was taken by the PSB for overnight interrogation and released the following day for lack of evidence;
f)That, as a result of having come to the attention of the PSB she was dismissed from work;
g)That following dismissal from her work she was supported by fellow Christians who assisted her in continuing her association with the underground church;
h)That, in February 2001, Ms Y assisted the Applicant to set up a petrol station used as a secret liaison station for the underground church;
i)That the Applicant was “head of the liaison station” whose purpose was to receive and store religious material, distribute material and act as a communications centre;
j)That the Applicant had an old school friend, Mr W, who was a senior police officer in the local PSB (“Mr W”);
k)That Mr W knew of the Applicant’s religion and her link with Ms H, although did not know of her involvement in the underground church;
l)That Mr W’s friendship protected the Applicant and was a source of information for her;
m)That Mr W’s friendship and information enabled the Applicant to assist the underground church’s secret liaison office to survive for nearly two and a half years;
n)That, on 9 September 2004, Mr X, who had received religious materials, was arrested by the local PSB;
o)That Mr X did not realise the petrol station was a liaison station for the church;
p)That Mr W initiated investigations and asked the Applicant for full cooperation;
q)That Mr W was suspended from his post due to his relationship with the Applicant;
r)That the Applicant was the supervisor of the person who supplied Mr X with the materials;
s)That the Applicant decided to leave the PRC in October 2004 after the arrest of six staff of the petrol station;
t)That the Applicant had to leave the PRC to escape persecution because of her beliefs and practices, which were not tolerated by the PRC authorities;
u)That the Applicant has learned from family and friends that her home has been searched by the PSB and she was been identified as a person who will be arrested.
Before the Tribunal the Applicant made the following further oral claims:
v)That she attended a church at Roseville since arriving in Australia and provided a letter from the Chairman of the Christian Assembly of Sydney confirming that fact (“the Chairman’s Letter”);
w)That her home in the PRC had been searched by the authorities and her children moved between relatives;
x)That she had no difficulties in obtaining her passport in March 2004;
y)That, in October 2004, she decided to “escape” the PRC at her husband’s insistence;
z)That she travelled to Australia via New Zealand, her travel being organised with the assistance of an agent;
aa)That, following the arrest of Ms H in late 1999 and her release by police, her employer dismissed her because she admitted a link to the underground church;
bb)That she had opened a petrol station in February 2001 at the suggestion of Ms Y, which was managed by her husband from funds obtained by his family;
cc)That the Applicant obtained the religious materials for distribution from Ms H, the person earlier arrested;
dd)That Ms H had been sentenced to two years imprisonment in 1999, although the Applicant was unsure about the exact time of her release;
ee)That Ms H arranged for the distribution of religious material through the Applicant in February 2001;
ff)That the distribution through the petrol station was able to be provided secretly with the assistance of Mr W, a PSB official, in evading detection;
gg)That, after the incidents in September 2004, she realised it was too dangerous to stay in the PRC;
hh)That, apart from distributing materials, the Applicant participated in private prayer, Bible readings and youth meetings;
ii)That her family had been subjected to repeated searches but no arrests.
The Tribunal found the Applicant’s husband to be a “reticent” witness. The Tribunal noted that the Applicant’s husband stated that he became a Christian sometime before he met the Applicant but did not have refugee claims of his own. The Tribunal noted that the Applicant’s husband stated that he travelled to Australia in June 2004 to see if Christians could practise freely. The Tribunal noted that the Applicant’s husband stated that his wife had preferred to stay in the PRC spreading the gospel. The Tribunal noted that the Applicant’s husband confirmed he had not experienced any problems as a result of his association with the underground church.
The Tribunal found that the Applicant is a member of the PRC who lives in the Fujian Province. The Tribunal noted the Applicant’s claim of a fear of persecution on the ground of religion based on her allegation of having been subject to past harm because of her activities in promoting Christianity. The Tribunal noted the Applicant’s claim that the Fujian authorities have an ongoing interest in arresting and punishing her because of her past and prospective activities.

The Tribunal noted the Applicant’s assertion that authorities do not tolerate her church and that she faces restrictions on her religious practice if she were to return to the PRC.
The Tribunal accepted that the Applicant is currently a practising Christian and referred to the Chairman’s Letter that confirmed her attendance of their church in Roseville. The Tribunal observed that it had confirmed that fact directly with the church. However, the Tribunal noted that the information about the Applicant and her husband from that source was limited and confined to their church attendance.

The Tribunal observed “This leaves unanswered relevant questions such as whether the Applicant’s interest in Christianity is genuine and longstanding as claimed.”
The Tribunal found the Applicant’s evidence about her knowledge of and adherence to Christianity “uneven”. The Tribunal noted that some of her answers were “hesitant and vague”. However, the Tribunal observed that it should be cautious about drawing adverse conclusions from those observations alone, particularly given the religious and cultural environment of her home country. It was in the context of that caution that the Tribunal stated that it gave the Applicant the benefit of the doubt in accepting that she is a Christian.
The Tribunal accepted that the Applicant is a member of a house, or underground, church and that her husband shares her faith.

The Tribunal noted that the Applicant’s oral evidence about being a Shouter was generalised and appeared to be a “rote description” of her religious practices, despite having been given ample opportunity to describe distinctive features relevant to her claims. For those reasons, whilst the Tribunal accepted that the Applicant is a member of a Christian underground church, it was not satisfied that she was in fact a Shouter.
In relation to the Applicant’s claim of general discrimination by reason of her religious affiliation, the Tribunal noted the Applicant’s claim that it was her special role in the church which was the main reason for her fears, although she could not provide any explanation as to why her husband would not also be subject to the same treatment as a member of her church.
The Tribunal had regard to independent country information on religious freedom in the PRC and on Christians in Fujian in particular. The Tribunal noted that reports indicated that, in the Fujian Province, there was generally a more tolerant attitude towards Christian practice, although official responses vary within the province. The Tribunal observed that often local officials appear to draw no distinction between registered and unregistered churches and that Christians practise with little thought on government policy. The Tribunal noted that other reports indicated restrictions placed on registered churches, including doctrinal matters. The Tribunal had particular regard to information about arrests of Shouter members and Bible smugglers.
The Tribunal was not satisfied that the Applicant will face any serious harm as a result of her adherence to Christianity. The Tribunal found that the “instances of disadvantage” referred to by the Applicant related to the distant past. The Tribunal had noted the Applicant’s evidence regarding her family’s current conditions and found that they did not indicate that her family was subject to any serious constraints or oppression in her locality.
The Tribunal noted the Applicant’s friendship with Mr W, a PSB official, and found that her relationship with Mr W indicated to the Tribunal that her area is one of the areas where officials do not generally interfere with the activities of unregistered churches.
The Tribunal accepted that the Applicant may have known PSB officials well disposed to Christians, however was “highly sceptical” that a PSB official, such as Mr W, could unknowingly provide information which enabled an illegal operation to survive for two years.
The Tribunal found that the Applicant’s Christian practice in Australia involved “low-key attendance at a suburban church”, which led the Tribunal to observe that there was nothing to cause the Tribunal to think that the Applicant’s adherence to Christianity had evolved and might now, or in the reasonably foreseeable future, attract the adverse attention of PRC, Fujian Province or Fuqing authorities. The Tribunal found that the Applicant would be free to continue her religious activities without facing a real chance of persecution if she were to return to the PRC.
In relation to the Applicant’s claim of her special role as head of the secret liaison station, the Tribunal noted that her alleged role was a critical factor distinguishing her role from that of her husband who had no refugee claims.
The Tribunal found that the notion of “spreading the gospel” had the meaning for the Applicant of the illegal distribution of religious materials. The Tribunal found the Applicant’s “almost rote references” unconvincing and that her claimed activities revealed significant anomalies leading the Tribunal not to be satisfied that the Applicant had in fact engaged in such activities.
The Tribunal stated that it had a number of concerns about the Applicant’s claims of the establishment and operation of the petrol station as an illegal distribution centre because it would be vulnerable to detection, particularly if it was also used to store material and provide communications.
The Tribunal was not satisfied about the Applicant’s evidence in relation to the role played by Ms H. The Tribunal noted that the Applicant claimed Ms H was imprisoned for two years in September 1999, yet was able to deliver materials secretly from early 2001. The Tribunal observed that, even if the Applicant was confused about the timelines involving her evidence about Ms H, the Tribunal was not satisfied that a person, such as Ms H, previously convicted of illegal religious activities would be able to resume work, even secretly, in receiving and further distributing religious materials.
The Tribunal expressed its concerns about why such an expensive and high profile operation as running a petrol station would be chosen as a secret liaison station.
Further, the Tribunal was not satisfied about the explanation by the Applicant of her husband’s potential vulnerability because he was the manager of the petrol station and noted that such an assertion appeared to be “an afterthought”. The Tribunal noted, in particular, that the Applicant’s husband appeared to be a more cautious person who could readily have identified such a claim of concern about his position as general manager vis a vis the PRC authorities and his role in the underground activities of the petrol station if, in fact, he had any connection with illegal activities. The Tribunal found that the fact that the husband did not make any such claim led it to conclude that the Applicant’s claim about any potential vulnerability on the part of her husband because of his activities lacked veracity.
The Tribunal had regard to brochures presented by the Applicant at the hearing as examples of the materials she distributed in the PRC, however, was not satisfied as to the provenance of the documents and did not find them corroborative of the Applicant’s claim to have distributed such materials in the PRC.
Ultimately the Tribunal concluded that, in view of all the factors to which it had referred, it was not satisfied as to the veracity of the Applicant’s claims and concluded that the Applicant “is not a reliable witness”. The Tribunal noted its particular lack of satisfaction:
a)that the Applicant was ever head of a secret liaison centre,
b)that the Applicant had participated in the illegal distribution of religious materials,
c)that she had been involved in any other illegal activities, that she had suffered harm for reason of such activities,
d)that she is currently being sought by authorities, that her children are currently being moved around different locations because of adverse interest in the Applicant, and
e)that she faced a real chance of prospective harm for this, or any other reason.
The Tribunal noted that it rejected the Applicant’s claims of specific targeting due to her religious profile on credibility grounds.

The Tribunal found that, having considered the Applicant’s claims individually and cumulatively, the Applicant has not been subject to any past harm for reason of her religion and she does not face a real chance of prospective harm for this or any other reason. For those reasons, the Tribunal was not satisfied that the Applicant has a well founded fear of Convention related harm in the reasonably foreseeable future and is not a refugee.

The proceeding before this Court

The Applicant was represented before this Court. The Applicant relied on a further amended application, which identified the following grounds:
" Ground One: Error Of Law
1. The Tribunal committed an error of law in that it failed to comply with section 424A(1) of the Migration Act 1958 (‘the Act’). The Tribunal’s failure to comply with the mandatory requirements of section 424A constitutes a jurisdictional error.
Particulars
1.1 The Tribunal failed to comply with section 424A(1) of the Act in that it failed to provide, in writing, particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review, namely, information that the Tribunal obtained from the author of a reference letter provided by the applicant, that the author was “unable to provide detail on other matters (than the applicant’s church attendance) such as their (the applicant’s) prior knowledge of Christianity and the extent to which they had outlined to fellow parishioners their alleged experiences in China” (Tribunal decision page 11 CB 112).
1.2 a) The Tribunal failed to comply with section 424A(1) of the Act in that it failed to provide, in writing, particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review, namely, evidence from the first applicant’s husband (the second applicant) that he returned to China voluntarily in mid-2004, that he “has not suffered any harm as a result of his religion at any time in the past” and had no refugee claims. (Tribunal decision page 19, CB 120).
b) The second applicant’s evidence does not fall within the exception of section 424A(3)(b).
Ground Two: Failure to Consider a Claim
2. The Tribunal committed a jurisdictional error in that it failed to consider a critical integer of the applicant’s claim, being that a PSB official, Mr W, was not aware of her religious activities and did not condone her religious activities.
Particulars
2.1    The Tribunal described the applicant’s evidence in relation to Mr W as an “untroubled reference to having contacts with a PSB official”. (Tribunal decision page 19 CB 120). The Tribunal considered the applicant’s evidence in relation to Mr W as indicating that “her area is one of those where officials do not generally interfere with the activities of unregistered churches”, which was one of the reasons that the Tribunal found that the applicant did not face a real chance of persecution in PRC for the reason of her Christian faith. (Tribunal decision page 19 CB 120)
2.2    In using the applicant’s evidence of her relationship with Mr W as the basis for its finding that authorities in her area did not generally interfere with the activities of unregistered churches the Tribunal demonstrated that it failed to take into account an integer of the applicant’s claim, namely that Mr W was not aware of her religious activities and did not condone her religious activities.
2.3    The applicant claimed that she had formed a friendship with Mr W at primary school and middle school and that he had been her friend since childhood (CB 34). The applicant claimed that Mr W understood that she was somehow involved with Ms H’s case, but that he warned her against being involved with the underground church and that he “never knew that I became one of key members in the underground church”. (CB 32,33). The applicant claimed that when one of her staff members became wanted by the PSB Mr W brought policemen to her petrol station to investigate and did not know at that time that she was directing her staff member’s religious activities. (CB 33) The applicant claimed that Mr W was subjected to investigation on account of “his special relationship with me” and suspended from his post on 2 November 2004 (CB 34), being shortly after the applicant’s arrival in Australia.
Ground Three: Failure to Take Into Account a Relevant Consideration
3. The Tribunal committed a jurisdictional error in that it failed to take into account the nature of the applicant’s relationship with a PSB official, Mr W.
Particulars
3.1    The Tribunal described the applicant’s evidence in relation to Mr W as an “untroubled reference to having contacts with a PSB official”. (Tribunal decision page 19 CB 120). The Tribunal considered the applicant’s evidence in relation to Mr W as indicating that “her area is one of those where officials do not generally interfere with the activities of unregistered churches”, which was one of the reasons that the Tribunal found that the applicant did not face a real chance of persecution in PRC for the reason of her Christian faith. (Tribunal decision page 19 CB 120)
3.2    In using the applicant’s evidence of her relationship with Mr W as the basis for its finding that authorities in her area did not generally interfere with the activities of unregistered churches the Tribunal demonstrated that it failed to take into account the nature of the applicant’s relationship with Mr W, which was a relevant consideration in assessing whether or not the applicant had a well founded fear of persecution.
3.3    The applicant claimed that she had formed a friendship with Mr W at primary school and middle school and that he had been her friend since childhood (CB 34). The applicant claimed that Mr W understood that she was somehow involved with Ms H’s case, but that he warned her against being involved with the underground church and that he “never knew that I became one of key members in the underground church”. (CB 32,33). The applicant claimed that when one of her staff members became wanted by the PSB Mr W brought policemen to her petrol station to investigate and did not know at that time that she was directing her staff member’s religious activities. (CB 33) The applicant claimed that Mr W was subjected to investigation on account of “his special relationship with me” and suspended from his post on 2 November 2004 (CB 34), being shortly after the applicant’s arrival in Australia.
Ground Four: No Evidence
4. The Tribunal committed a jurisdictional error in relying upon findings of fact for which there was no evidence.
Particulars
4.1    The Tribunal considered part of the applicant’s claim as being that “Ms H was imprisoned for two years in September 1999” (Tribunal decision page 20 CB 121). There was no evidence before the Tribunal that the applicant made that claim. In her initial statutory declaration the applicant stated that Ms H was “sentenced to two-year reform” (CB 31). At hearing the applicant stated that Ms H was “sentenced to two years in jail” (Refugee Review Tribunal transcript 8 February 2005 page 34) and that, she was not sure, but that she thought that Ms H could have been released earlier or that her sentence was reduced (Refugee Review Tribunal transcript 8 February 2005 page 40).
4.2    Furthermore, the Tribunal was not satisfied “that a person previously convicted of ‘illegal religious activities’ would be able to resume work, even secretly, in receiving and further distributing religious materials”. (Tribunal decision page 20, CB121) There was no evidence before the Tribunal to support that finding.
4.3    These findings were a primary reason for the Tribunal’s rejection of the applicant’s claims in relation to her religious profile.
Ground Five: Unreasonableness
5. The Tribunal committed a jurisdictional error in purporting to affirm the decision to refuse the applicant’s protection visa application by acting in a manner so unreasonable that no reasonable decision-maker making a decision required by section 36 of the Act would act.
Particulars
5.1    The Tribunal considered part of the applicant’s claim as being that “Ms H was imprisoned for two years in September 1999” (Tribunal decision page 20 CB 121). There was no evidence before the Tribunal that the applicant made that claim. In her initial statutory declaration the applicant stated that Ms H was “sentenced to two-year reform” (CB 31). At hearing the applicant stated that Ms H was “sentenced to two years in jail” (Refugee Review Tribunal transcript 8 February 2005 page 34) and that, she was not sure, but that she thought that Ms H could have been released earlier or that her sentence was reduced (Refugee Review Tribunal transcript 8 February 2005 page 40).
5.2    The Tribunal was not satisfied “that a person previously convicted of ‘illegal religious activities’ would be able to resume work, even secretly, in receiving and further distributing religious materials” (Tribunal decision page 20, CB121). There was no evidence before the Tribunal to support that finding.
5.3    These findings were a primary reason for the Tribunal’s rejection of the applicant’s claims in relation to her religious profile.
5.4    In rejecting the applicant’s claim on the basis of this reason the Tribunal acted in a manner so unreasonable that no reasonable decision-maker assessing a claim for a protection visa would act.”
The Applicant’s solicitor distilled and addressed the Applicant’s grounds as follows:

Ground 1

Ground 1 is an allegation by the Applicant that the Tribunal breached its obligations under s.424A(1) of the Act in two respects:
i)The first, in relation to information sourced by the Tribunal from the Chairman of the Applicant’s church arising out of the Chairman’s Letter.
ii)The second, in relation to the consideration by the Tribunal of the Applicant’s husband’s evidence in concluding that the Applicant did not have a well founded fear of persecution for a Convention related reason.

The Chairman’s Letter

The Tribunal noted its discussion with the Applicant about her religious activities since arriving in Australia. The Tribunal noted the Chairman’s Letter provided by the Applicant in support of her attendance at the Roseville church. That document is in the following terms:
“TO WHO (sic) IT MAY CONCERN
This is to confirm that [the Applicant] has been meeting with the church at Roseville November 2004.
We have no hesitation in commending [the Applicant].
With kind regards,
[signed]
Chairman.”
The Tribunal noted that it contacted the Chairman after the hearing to ask about the contents. The Tribunal noted that the Chairman confirmed the Applicant and her husband’s regular attendance at the church, but was unable to “provide detail on other matters such as their prior knowledge of Christianity and the extent to which they had outlined to fellow parishioners their alleged experiences in China.”
The Applicant’s solicitor submitted that the fact that the Chairman had no further knowledge about the Applicant, had no knowledge of whether or not the Applicant had told her experiences in the PRC to parishioners and knew little about the Applicant, was all information arising from the Tribunal’s conversation with the Chairman and which formed part of its reason for affirming the decision under review, thereby enlivening the requirements of s.424A(1) of the Act
The First Respondent conceded that, if in fact there was information obtained by the Tribunal after the hearing as a result of its conversation with the Chairman and such information was part of the reason for the Tribunal affirming the decision under review, then the Tribunal had not complied with its obligations under s.424A(1) of the Act.
In particular, the Applicant’s solicitor contended that the Tribunal’s finding that the Applicant’s attendance at a suburban church was “low-key”, was a finding which was part of the reason for the Tribunal affirming the decision under review and arose from the Tribunal’s consideration of information contained in the conversation that the Tribunal had with the Chairman.
The Applicant’s solicitor referred the Court to the observations of Weinberg J in SZEEU v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [182] where His Honour stated that “The causal connection must be real, but need not be great” between the information and it being part of the reason for affirming the decision under review and that it is not necessary to show that “but for” the information in question the result would have been different. Rather, it is sufficient simply to show that the information contributed in some way to the decision by the Tribunal to affirm the decision under review, thereby rendering it an operative causal link. The Applicant’s solicitor also referred to [163] of Weinberg J’s judgment in SZEEU in support of her submission that, whether or not information is part of the reason for affirming the decision under review, should be read benevolently in favour of an applicant for review.
The First Respondent submitted that there was no information to which the Tribunal had regard as forming part of its reasons for affirming the decision under review arising out of its conversation with the Chairman.
In the ‘Claims and Evidence’ section of its decision, the Tribunal refers in full to the conversation that it had with the Chairman and noted that the Chairman did not provide any detail beyond the confirmation of the Applicant’s regular attendance at the church. The Tribunal did observe that the Chairman was unable to provide details on other matters, such as the Applicant’s prior knowledge of Christianity and the extent to which the Applicant and her husband had outlined to fellow parishioners their alleged experiences in the PRC.
Certainly, in the ‘Findings and Reasons’ section of its decision, the Tribunal noted that it accepted the Chairman’s letter as corroborative of the Applicant’s claim of having attended the church in Roseville.

The Tribunal observed that it had confirmed that fact directly with the Chairman.
The Tribunal then stated that the text of the letter, and the limited information which the Chairman was able to provide, referred only to the Applicant’s church attendance. That statement, to my mind, is a clear indication that the only matters to which the Tribunal had regard in considering the Chairman’s letter, or anything arising from its conversation, was confirmation of the Applicant’s attendance at the Roseville church. The Tribunal’s conversation with the Chairman did no more than confirm the authenticity of the letter. The conversation as recorded in the Tribunal’s decision did not result in any further information being made available to the Tribunal.
The Applicant tendered to the Court a copy of the transcript.

The transcript confirms that the Applicant claimed to have attended the church in Roseville once a week at 10:30am on a Sunday. Further, the transcript reveals that the Applicant confirmed that, whilst she may have told people at the church about her experiences in Fujian “at the very beginning”, she had not told the Chairman. The Tribunal’s observation in its disclosure of the conversation with the Chairman is merely confirmatory of that evidence by the Applicant and consistent with the Applicant’s claim that the Chairman would be unlikely to be able to provide detail about the extent to which the Applicant and her husband had outlined to fellow parishioners their alleged experiences in the PRC.
The Applicant’s solicitor contended that the Tribunal’s finding that the Applicant’s attendance at a suburban church was “low-key” was part of the reason for the Tribunal affirming the decision under review and arose from the failure by the Chairman to provide any further information to the Tribunal in the course of the Tribunal’s conversation with the Chairman as to anything said by the Applicant to the parishioners and that the Chairman knew little about the Applicant.

I reject that contention. There is nothing to suggest that the description by the Tribunal of the Applicant’s attendance at a suburban church as “low-key” was anything other than the Tribunal’s evaluation of the Applicant’s own evidence about having attended the Roseville church weekly. There was no other claim from either Applicant as to any further activities undertaken by them at the Roseville church or any other church.
A fair reading of the decision as a whole makes it clear that the Tribunal regarded the Chairman’s letter as corroborative of the Applicant’s claim of regular attendance at a church and made such a finding in accordance with the Applicant’s claim. However, the Tribunal noted that, having found the Applicant regularly attended the church at Roseville, relevant questions remained unanswered as to whether the Applicant’s interest in Christianity was genuine and long standing as claimed. In my view, there was no causal link between the lack of further detail about the Applicant from the Tribunal’s conversation with the Chairman and the Tribunal’s affirming of the decision under review.
A benevolent reading in favour of the Applicant of what formed part of the Tribunal’s reason for affirming the decision under review did not involve any part of the Tribunal’s conversation with the Chairman.
In the circumstances, it was open to the Tribunal to find that the Applicant’s attendance at a suburban church was, in the circumstances, “low-key”. I reject the Applicant’s submission that such a finding was in any way contributed to by the ignorance of the Chairman about the Applicant other than her attendance in church.
Accordingly, there was no information that was part of the reason for the Tribunal affirming the decision under review arising out of that conversation that enlivened the Tribunal’s obligations under s.424A(1) of the Act.

The husband’s evidence

The Applicant contended that the Tribunal was obliged to give to the Applicant in writing the evidence of her husband to which it had regard and which formed part of the reason for affirming the reason under review. The husband’s evidence was information that would enliven s.424A of the Act.
The Applicant’s solicitor conceded that this Court is bound by recent authorities that would not enable the Applicant to run such a contention in this Court. However, the Applicant wished to retain her submissions on the point. For that reason, I set out the Applicant’s submissions in respect of this issue, followed by the First Respondent’s submissions.
The Applicant’s submissions in respect of this issue are as follows:
“Evidence from Applicant’s Husband
27.    The applicant’s husband provided evidence to the Tribunal that he returned to PR China voluntarily in mid 2004; that he had not suffered harm on account of his Christian faith and that the had no refugee claims of his own (CB 120).
28.    This information was part of the Tribunal’s reason for affirming the decision under review and the Tribunal was obliged to provide it to the applicant in writing in accordance with s 424A(1). First of all, it is cited by the Tribunal as evidence relevant to its finding that the applicant would not face a real chance of persecution because of her Christian faith: CB 120.
29.    However, this is not the only way in which the Tribunal uses evidence of the applicant’s husband in making its decision.
30.    In order to attract the operation of section the information must be relevant to the Tribunal’s decision, but that is not limited to circumstances in which the information forms a positive factual finding upon which the decision rests. In the matter of SZEEU v Minister for Immigration [2006] FCAFC 2 Allsop J stated:
“I do not regard the operation of s 424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 [19]- [23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that one things was said in the prior statement and another at hearing, or the fact that if what is now being asserted at hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b).”
31.    In this case the Tribunal did not accept the applicant’s claims in relation to the applicant’s husband’s risk of harm because of the her husband’s evidence at hearing that he did not have refugee claims: CB 122. What the Tribunal perceived as an inconsistency between the evidence of the applicant’s husband and the applicant’s submissions in relation to the risk faced by her husband formed part of the reason the Tribunal rejected the applicant’s account of her risk of harm: CB 122.
32.    The information provided by the applicant’s husband should have been provided in writing to the applicant for her comment in accordance with section 424A. The Tribunal’s failure to provide the information to the applicant in compliance with section 424A amounts to a jurisdictional error on the part of the Tribunal.
33. It is the applicants’ submission that the Tribunal is not protected by section 424A(3)(b) of the Act, which states that section 424A does not apply to information “that the applicant gave for the purpose of the application”.
34.    The applicants note that there is a difference of judicial opinion in relation the application of section 424A(3)(b), but that the decisions of MZWMQ v Minister for Immigration and Multicultural Affairs [2005] FCA 1263 and Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 (9 March 2006) are binding upon this Court. The Federal Court held in those cases that evidence given to the Refugee Review Tribunal by a spouse, applying for a protection visa as a member of the family unit of an applicant claiming refugee status, fell within the exception of 424A(3)(b). On that basis it was held that the Tribunal was not required to give to the primary applicant particulars of the spouse’s evidence under section 424A(1)(a).
35.    With respect, the applicants formally submit that MZWMQ v MIMA and Applicant M47/2004 v MIMIA were wrongly decided. The applicants observe the interpretation of section 424A(3)(b) suggested by a majority of the Full Federal Court in SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13 (22 February 2006). In SZBWJ v MIMA the Court had the benefit of receiving submissions from counsel of both parties because the appellant was represented, unlike the Court in MZWMQ v MIMA and Applicant M47/2004 v MIMIA in which the appellants were self-represented.
36.    The relevant facts of SZBWJ v MIMA were that the appellant husband applied for a protection visa claiming to be a person to whom Australia had protection obligations and his wife applied for a protection visa on the ground that she was a member of the husband’s family unit. (paragraph 37 judgement Nicholson and Emmett JJ) The decision of the Refugee Review Tribunal was that it rejected the appellant husband’s refugee claims because of its unfavourable assessment of his credibility, which was an assessment based upon inconsistencies between the evidence of the appellant husband and his wife (paragraph 8 judgement Nicholson and Emmett JJ). The appellants claimed that the Tribunal failed to comply with the requirements of section 424A(1) in not putting to the appellant husband in writing information provided by his wife at hearing (paragraph 18 judgement Nicholson and Emmett JJ). The Minister argued that there was no such failure because the evidence given by the wife fell within the exception in section 424A(3)(b). Nicholson and Emmett JJ wrote a joint judgement. Their Honours strongly indicated that they did not accept the Minister’s interpretation of section 424A(3)(b). However, the matter was decided against the appellants’ for the reason that it was held that the Court should exercise its discretion not to grant the appellants’ leave to argue this ground on appeal. Nevertheless, at paragraph 44 of their judgement Nicholson and Emmett JJ analysed the Minister’s submission in relation to section 424A(3)(b) as follows:
“… the Minister’s contentions may not be well founded. It seems reasonably clear … that, even if the criterion referred to in s 36(2)(b) depends upon a favourable decision in relation to a person who falls within s 36(2)(a), each application for review by the Tribunal is separate and independent. It would appear that each of the wife, the daughter and the son must be treated as a separate applicant to the Tribunal for review. If that is the case it would follow that the Minister’s basis for distinguishing SAAP v The Minister has no foundation.”
37.    It is the applicant’s submission that the reference to “the applicant” in section 424A(3)(b) refers to a singular applicant, in this case, the relevant applicant is the first review applicant.”

The First Respondent’s submissions in respect of this issue are as follows:
“The husband’s evidence
18.    The applicants then separately allege a breach of section 424A with respect to the taking into account by the Tribunal of evidence from the applicant husband.
19.    The respondent relies upon the following decisions of the Federal Court of Australia, on appeal from this Court, in which it was held that section 424A(3)(b) extends to evidence given by a joint applicant: M47/2004 v MIMIA [2006] FCA 176 (9 March 2006) per Young J, especially at [23]; MZWMQ v MIMIA [2005] FCA 1263 per Marshall J, especially at [24] (later also followed by Marshall J in MZWIF v MIMIA [2005] FCA 1701 at [11]).
20.    SZEEU does not deal with this issue and, in any event, M47/2004 was after SZEEU. SAAP v MIMIA (2005) 215 ALR 162 does not deal with the point and is distinguishable, as the witness in that case had no application before the Tribunal (see per McHugh J at [133]).
21.    The applicants refer to MZWMQ and M47/2004 and they properly accept that they are binding (paragraph 34). It is only formally and protectively that the applicants submit that they were wrong (paragraph 35).
22.    The respondent does note that, on 13 June 2006, Branson J delivered judgment in SZECG v MIMIA [2006] FCA 733, in which her Honour, ultimately at [17]-[19], rejected a contention by the respondent that evidence given by an applicant’s father, from whom the applicant had asked that evidence be taken, fell within section 424A(3)(b). SZECG is distinguishable from the present case, and from the above cases relied upon by the respondent, because there is no indication that the father in SZECG was himself an applicant, or joint applicant, before the Tribunal. It is also noted that Branson J does not refer to those judgments. Nor does her Honour refer to VBAM of 2002 v MIMIA [2003] FCA 504 at [44], where Gray J accepted that section 424A(3)(b) applied in relation to the evidence of three witnesses that the applicant had requested to be called (though that is not as important as is the direct and binding authority of M47/2004 and MZWMQ).
23.    It is accordingly submitted that the Court should find no breach of section 424A in the present case.”
Otherwise, in light of the Applicant’s concession that I am bound by the recent authorities of the Federal Court of Australia in respect of the contentions made on particular (ii) and the First Respondent’s submission that I am so bound, I must find that Ground 1(ii) is not made out.
Accordingly, Ground 1 is not made out.

Ground 2

Whilst Ground 2 appears to contemplate a claim of a failure by the Tribunal to consider a claim squarely raised on the material before it, the oral submissions by the Applicant’s solicitor made it clear that such a claim related to a complaint that the Tribunal had misstated evidence of the Applicant in finding that the Applicant’s fear of persecution was not well founded. I have confined my consideration of this ground to the oral submissions of the Applicant’s solicitor, whom I understood to have confirmed that the Applicant’s contentions in respect of this ground are covered by her oral submissions.
The Applicant’s solicitor contended that the Tribunal’s statement that “The Applicant’s untroubled reference (emphasis added) to having contacts with a PSB official indicates to the Tribunal that her area is one of those where officials do not generally interfere with the activities of unregistered churches” misstates the Applicant’s evidence about her contact with the PSB official, Mr W.
In making this finding, the Applicant’s solicitor submitted that the Tribunal had failed to take into account the Applicant’s allegation that Mr W had been removed from his post as a result of his relationship with the Applicant. The Applicant’s solicitor contended that the Tribunal was required to make a finding as to whether or not Mr W had been removed from his post and that it was not open to the Tribunal to draw the conclusion above without having made such a finding.
The First Respondent contended that the Applicant had not established that there was any such misstatement of her evidence and that any such claim of jurisdictional error was predicated on establishing that fact.
A fair reading of the Tribunal decision makes it clear that the Tribunal’s description of the Applicant’s contact with Mr W as “untroubled” referred to the Applicant’s evidence of a long standing friendship and one which involved the sharing of information by Mr W with the Applicant and one in which Mr W sought to protect the Applicant.

It was the fact that the Applicant could claim to have such a relationship coupled with the independent country information, that registered and unregistered churches could coexist in the Fujian Province although conditions may vary, that led the Tribunal to find that the Applicant lived in an area where officials did not generally interfere with the activities of unregistered churches. That is a finding of fact open to the Tribunal on the evidence and material before it and does not involve any misstatement by the Tribunal of the Applicant’s evidence.
The fact that the Applicant may not herself have described her relationship with Mr W as “untroubled” does not mean that, on the material before the Tribunal, such a finding was not open to it.
The Tribunal decision makes it clear that it was aware of the detail of the Applicant’s assertions in relation to her relationship with Mr W and his assistance to her. The Applicant’s solicitor does not suggest that such recitation by the Tribunal is in any way inaccurate or inconsistent with the evidence before the Tribunal.
Later in its decision, the Tribunal noted that it was “highly sceptical” about the Applicant’s claims that Mr W would unknowingly provide information enabling the Applicant’s illegal operation to survive for two years and was not satisfied that Mr W would unwittingly provide such information over a sustained period. The evidence about Mr W’s activity was evidence given solely by the Applicant and the Tribunal ultimately found her not to be a reliable witness and was not satisfied as to the veracity of her claims.
In my view, there was no need for the Tribunal to make a finding about whether or not Mr W was dismissed from his job because of his association with the Applicant, having regard to the broader finding made by the Tribunal about the credibility of the Applicant’s evidence overall. The Tribunal plainly had regard to the full extent of the Applicant’s claims in relation to Mr W and did not accept as truthful her evidence relating to her claims about her relationship with Mr W, his unwitting assistance to her, his protection of her or, inferentially, his suspension from his job because of his relationship with the Applicant.
It is not necessary for a Tribunal to refer to every piece of evidence and every contention (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 75 ALD 630 at [46]-[47]).
The Applicant’s claim about the consequence for Mr W of his relationship with the Applicant was simply part of the evidence put forward by the Applicant as supporting her claim of a well founded fear of persecution. The Tribunal found the Applicant not to be a credible witness and, in the circumstances, it was not necessary for the Tribunal to make specific findings relating to every factual allegation made by the Applicant.
To reject evidence or fail to be satisfied by the evidence does not amount to a failure to consider the evidence.
Accordingly, Ground 2 is rejected.

Ground 3

The Applicant’s solicitor stated that essentially she made the same submissions in relation to Ground 3 as had been made in relation to Ground 2. Accordingly, the First Respondent had no further submission in respect of ground 3.
However, the Applicant’s solicitor further referred to SZGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 431 (“SZGDB”), where Rares J observed that a finding based on a misstatement of the Applicant’s evidence may be capable of amounting to jurisdictional error. However, in SZGDB, the Tribunal appears to have based its conclusion that the applicant before it was untruthful based on its misstatement of the applicant’s evidence. That is not the case in the case before this Court. There is no such misstatement of the Applicant’s evidence (see these reasons above in relation to Ground 2).
Clearly, the Tribunal took into account the Applicant’s evidence in relation to Mr W and, as stated above, it is accurately identified by the Tribunal in the ‘Claims and Evidence’ section of its decision.
Accordingly, Ground 3 is not made out.

Ground 4

At the heart of this ground is a complaint by the Applicant that the Tribunal was not satisfied about the correctness of the Applicant’s account of Ms H’s role in circumstances where the Tribunal had again misstated or misunderstood the evidence before it. In its decision, the Tribunal stated the following:
“The Tribunal is also not satisfied that the Applicant’s account of Ms H’s role is correct. It was her claim that Ms H was imprisoned for two years (emphasis added) in September 1999, yet at hearing she identified her as the person who delivered materials secretly from the time of the establishment of the station in early 2001. Even if the Applicant confused the timelines, as claimed, the Tribunal is not satisfied that a person previously convicted of ‘illegal religious activities’ would be able to resume work, even secretly, in receiving and further distributing religious materials.”
The Applicant’s solicitor submitted that there was no evidence before the Tribunal to the effect that Ms H was imprisoned for two years in September 1999.
In her statutory declaration in support of her primary application, the Applicant states that Ms H “had been sentenced to two-year reform through labor (sic), and she was sent to a labor farm far away from my hometown.” The statutory declaration also states that, “One day, around September 1999, many policemen suddenly came to the diesel oil wholesale shop, and I witness that [Ms H] had been taken away first.”
The transcript discloses that the Applicant stated that Ms H was arrested in 1999 and “I believe that she was sentenced then two years in jail.” Later in the transcript, the Tribunal raises with the Applicant that she had stated that Ms H was arrested in September 1999 and had two years on the labour farm so how could she have been around in February 2001 to give materials to the Applicant for distribution?

The Applicant’s response stated, “It was in 2001, it wasn’t, so I don’t know exactly, maybe um, she was released earlier and maybe her sentence was reduced, I don’t know exactly.” The Tribunal member went on to say, “Well hang on though I would like to ask, you told me here that she was sentenced in September 1999 for two years in prison. Yet a year and a half later she is providing you with, she’s your conduit for this material.” The Applicant responded, “No, she came back and she was not inside.” (“Being inside” is later clarified as being inside jail).
The transcript discloses that it must have been clear to the Applicant that the Tribunal understood the Applicant’s evidence to be that Ms H was imprisoned for two years. The transcript reveals that the Applicant simply stated that she did not know and that Ms H may have been released early or her sentence reduced.
In the circumstances, it was open to the Tribunal to ask a question based on the premise that the Applicant had claimed that Ms H was imprisoned for two years in September 1999, without that being a misstatement of the Applicant’s evidence in her written claims.
There was an opportunity to the Applicant to clarify that evidence and, in my view, her answers did not make the position so clear that the Tribunal should have understood that the Applicant’s claim was that Ms H was sentenced, rather than imprisoned, for two years in September 1999. In the circumstances, it was reasonable for the Tribunal to understand the Applicant’s evidence to be that Ms H was imprisoned for two years.
In any event, the Tribunal went on to contemplate that the Applicant may have confused her timelines as to when Ms H may have been released. This contemplation by the Tribunal leads to the inference that, whether or not Ms H was imprisoned for 2 years or less, was not at the heart of the Tribunal’s rejection of the Applicant’s claims about Ms H’s activities.
The Applicant’s solicitor also submitted that it was not open to the Tribunal to find that it was not satisfied that a person previously convicted of ‘illegal religious activities’ would be able to resume work, even secretly, in receiving and further distributing religious materials, as no such claim had been made by the Applicant.
However, that finding by the Tribunal was a finding that, even if the Applicant was confused about the length of time that Ms H was detained, the Tribunal was not satisfied that such a person was able to resume work and receive further religious materials for distribution, having being convicted of illegal religious activities. The Tribunal did not make a finding that Ms H was not able to resume work or receive further religious materials for distribution, having been convicted of illegal religious activities. The Tribunal concluded that it was simply not satisfied, on the evidence and material before it, of the veracity of the Applicant’s claims about her activities with Ms H. Such a conclusion was readily available to the Tribunal on the evidence and material before it.
There is no jurisdictional error in the Tribunal failing to reach a level of satisfaction about a matter. The Tribunal was doing no more or less than attempting to reveal the reasoning process that led it not to accept that Applicant’s evidence of Ms H’s role.
Further, there is no allegation made that the interpreter misinterpreted any evidence, nor is there any evidence before the Court to support such a proposition.
Accordingly, Ground 4 is not made out.

Ground 5

Both parties confirm that the submissions in relation to Ground 5 were the same as those in relation to Ground 4. Accordingly, in light of the findings I have made in relation to Ground 4, Ground 5 is not made out.

Conclusion

The decision of the Tribunal is not affected by jurisdictional error. Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 18 October 2006