SZHAY v Minister for Immigration & Anor
[2006] FMCA 261
•21 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHAY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 261 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China based upon his practice of Falun Gong – whether the RRT overlooked a relevant consideration considered – applicant claimed to have suffered memory loss following torture – whether the RRT failed to take that claim into account considered – whether the RRT breached s.91R(3) of the Migration Act 1958 (Cth) by taking into account the applicant’s conduct in Australia considered – whether the RRT breached s.424A of the Migration Act in not giving written notice of that information considered. |
| Migration Act 1958 (Cth), ss.91R, 424A |
| Minister for Immigration v Yusuf (2001) 206 CLR 323 Singh v Minister for Immigration [2001] FCA 389 SZCOQ v Minister for Immigration [2006] FMCA 189 |
| Applicant: | SZHAY |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2426 of 2005 |
| Judgment of: | Driver FM |
| Hearing dates: Date of last submission: | 8 December 2005, 10 March 2006 24 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 April 2006 |
REPRESENTATION
Counsel for the Applicant: Mr A Joseph, pro bono publico
| Solicitors for the Respondents: | Ms T Quinn Phillips Fox |
ORDERS
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal made on 15 August 2005 and notified by letter dated 16 August 2005.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it, according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2426 of 2005
| SZHAY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was signed on 15 August 2005 and notified to the applicant by letter dated 16 August 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The factual background is as set out in the Minister’s written submissions.
The applicant is a male citizen of China who was born on 7 February 1961.[1] He arrived in Australia on 14 December 2004.[2]
[1] court book, page 27
[2] court book, page 29
The applicant applied for a protection visa on 18 January 2005.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 11 March 2005.[5]
[3] court book, pages 1 to 34
[4] court book, pages 31 to 34
[5] court book, pages 37 to 45
The applicant applied to the RRT for review of the original decision on 19 April 2005.[6]
[6] court book, pages 46 to 50
The applicant gave oral evidence before the RRT on 5 August 2005. The RRT handed down its decisions on 15 August 2005[7].
[7] court book, pages 61 to 78
The applicant's claims
The applicant's claims to the RRT were contained in the statement accompanying his protection visa application (PVA)[8] and in the oral evidence he gave at the RRT hearing. In his PVA, he claimed that:
a)He was a genuine Falun Gong practitioner and had been practising since 1996.
b)When Falun Gong was banned in April 1999 he could no longer participate in group exercises.
c)As group leader in his local district he wrote to Master Li requesting guidance. On 28 January 2000 he received a letter from Master Li, asking him to encourage and help his brothers and sisters strengthen their belief in Falun Dafa. He showed this letter to his fellow group members.
d)On 10 February 2000 eight police entered his home and forced him to hand over the letter. They took his books, clothes, tapes and promotion pamphlets. He was detained and questioned for forty-one days and was severely mistreated. He was not given proper food and water, was forced to drink his own urine and was beaten by electronic bars.
e)After his release he suffered memory difficulties but did not forget what had happened during his detention.
f)He decided to leave China, but had some difficulty leaving
[8] court book, pages 31 to 34
The applicant attended a hearing in the absence of his adviser. The RRT summarised the hearing in its reasons for its decision[9].
a)The applicant said that to obtain his Chinese passport, he provided his household registration card, his residential identity card, photographs and an application fee to the Border Control Office. The passport was in his own name and contained his correct personal details.
b)The applicant began practising Falun Gong in 1996. He would practise five or six times a week. He gave inconsistent evidence about what he did after the ban in 1999. He claimed that he stopped practising after the ban, but then claimed he practised in secret rather than in public. He stated later that he had not practised at all after May or June 1999.
c)The applicant claimed to be an ordinary practitioner. When referred to his claim in the PVA about being a group leader, he said that he had played more of a leadership role from 1998.
d)He said that he had practised Falun Gong because it improved his health and there was always someone to help him.
e)He said that someone decided that they should write to Master Li. He drafted the letter on the group's behalf and presented it to the station leader, Mr Wei, who was going to email it to Master Li. Mr Wei was arrested on 20 July 1999, but was released after two months. On 18 January 2000, Mr Wei came to see the applicant and gave him a letter from Master Li's assistant that he had downloaded from the internet. The applicant then went to other practitioners' houses to show them the letter. On 10 February 2000, he was arrested. He could not remember what day of the week this was.
f)He said that he had not associated with Falun Gong practitioners in Australia at all, because he had not practised for quite a few years. He then said that he could not find anywhere to practise and was afraid. He had joined a group in the detention centre one week earlier.
[9] court book, pages 65 to 69
The decision of the RRT
In rejecting the applicant's claims, the RRT found that the applicant evidence was confused and implausible. It did not consider the applicant's evidence to be credible. It considered that the applicant had fabricated his claims in an attempt to create for himself the profile of a refugee. It noted, for example, that:
a)The applicant gave internally inconsistent evidence during the hearing concerning his supposed practice of Falun Gong in China. He stated that he stopped practising when it was banned, then said that he continued to practise in private, but then reverted to his story that he stopped completely.
b)It formed the impression that the applicant's evidence was rehearsed. He claimed to remember the exact date he was arrested, but could not remember the day of the week. The RRT considered this to be suspect.
c)The applicant's behaviour after his arrival in Australia was not consistent with a person who was genuinely committed to Falun Gong. He did not make any real effort to seek out other practitioners during the five months before he was taken into detention. The fact that the applicant had only joined a group in the detention centre one week before the RRT hearing further supported this conclusion.
The RRT found that the applicant fabricated his claims, and that he had not practised Falun Gong in China. It found he had not previously suffered persecution in China. It found that he had not developed a genuine commitment to Falun Gong since arriving in Australia, so would not be persecuted for this reason in the future.
In his judicial review application filed on 29 August 2005 the applicant relevantly asserts that the RRT failed to understand his claims and failed to take into account relevant matters. The applicant also asserts that the RRT exceeded its jurisdiction in arriving at its decision. Finally, the applicant asserts that the RRT decision was made otherwise than on proper grounds and without proper investigation. Although particulars of the asserted failure to take into account relevant matters were promised, they were not provided.
Submissions
The Minister relies upon her written submissions filed on 28 November 2005. At the hearing before me on 8 December 2005 I raised three matters with Ms Quinn, who appeared on behalf of the Minister. The first of these related to the applicant’s claim[10] that following detention and torture over 41 days he suffered memory loss. I put to Ms Quinn that this claim, although mentioned by the presiding member on page 5 of her decision[11], was not dealt with in her reasons. I put to Ms Quinn that the RRT may commit a jurisdictional error by rejecting claims on the basis of inconsistent or incomplete evidence without considering an explanation for such inconsistent or incomplete evidence which forms an essential part of the applicant’s claims. Ms Quinn submitted that on a fair reading of the reasons as whole, the claim was considered and, indeed, the presiding member pressed the applicant at the hearing on what details he could remember. Ms Quinn also submitted that the adverse credibility finding based on inconsistent evidence and the inability of the applicant to recall what day of the week he was taken into custody in China was not of itself determinative[12]. The presiding member said:
The above points would not of themselves lead to a finding that the applicant’s claims lack credibility, but when considered in conjunction with the applicant’s behaviour after arriving in Australia contribute to an overall impression of the applicant as someone whose evidence is not reliable.
[10] court book, page 33
[11] court book, page 65
[12] court book, page 75
The presiding member then considered the applicant’s conduct in Australia. The presiding member relevantly said:
…the applicant claims to have left China for fear of persecution because of his involvement in Falun Gong. However he made no effort to become involved with the Falun Gong movement after arriving in Australia. In my view, if the applicant had been a person committed to Falun Gong, who had suffered persecution for this reason, he would have made some real effort to seek out Falun Gong practitioners when he arrived in Australia. As noted above, the applicant was in Australia for some five months before being taken into detention. I am of the view that it would not have been difficult for the applicant to make contact with the Falun Gong movement in this country, had he been genuinely interested in Falun Gong practice. In relation to this, I note the applicant’s evidence that he used to take Falun Gong leaflets from people in the street. The applicant could have asked these Falun Gong practitioners where he could go to participate in group practice. The applicant’s evidence during the hearing that he only started practising Falun Gong in the detention centre the week before the hearing further supports a conclusion that the applicant has no particular interest in or commitment to Falun Gong.
The presiding member concluded that the applicant had fabricated his claims that he was not a Falun Gong practitioner and that accordingly, he did not have a well-founded fear of persecution in China by reason of his asserted practice of Falun Gong.
I raised with Ms Quinn two issues in relation to these findings. The first was whether the RRT had erred in making an impermissible assumption about the conduct that could be expected of genuine Falun Gong practitioners in Australia[13]. Ms Quinn submits that the RRT had not fallen into the kind of errors identified by the High Court in S395.
[13] cf AppellantS395 of 2002 v Minister for Immigration (2004) 203 ALR 112 and Applicant NABD of 2002 v Minister for Immigration & Anor (2005) 216 ALR 1
The other issue was whether, in taking into account the applicant’s conduct since arriving in Australia, the RRT breached s.91R(3) of the Migration Act. That subsection provides as follows:
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
I queried whether it was open to the presiding member to take into account the applicant’s conduct without making a decision on whether that conduct had been engaged in otherwise for the purpose of strengthening the applicant’s claim to be a refugee. I noted that the presiding member’s factual finding that the applicant only started practising Falun Gong in Australia one week before his hearing in the RRT might render it difficult to infer such a finding and no express finding had been made.
Ms Quinn sought the opportunity to provide written submissions on this issue. I made orders inviting written submissions from both parties on it.
In further written submissions (prepared by Mr J Smith) filed on 21 December 2005 the Minister submits as follows:
These submissions address the following issues:
a)Whether, in considering the question of the applicant’s credibility, the Tribunal considered, or ought to have considered the applicant’s claim to have lost his memory;
b)Whether the Tribunal misunderstood the meaning of refugee in that it assessed whether the applicant was a refugee on the basis of what he should have done rather than what he would or might do; and
c)whether the Minister for Immigration and Multicultural and Indigenous Affairs (or the Tribunal on review) is required to disregard all conduct engaged in by an applicant in Australia unless satisfied that it was engaged in otherwise than for the purpose of strengthening that person’s claim to be a refugee;
First issue – memory loss
The Tribunal did consider the applicant’s claim to have lost his memory: it is referred to expressly in the statement of reasons at CB 65.6. The claim may have been relevant to the question of the applicant’s credit, but was certainly not decisive of it. In other words, it was open to the Tribunal to reject the applicant’s claims on the basis of other evidence and material. That is precisely what the Tribunal did.
The fact is that the Tribunal had several good reasons to reject the applicant’s credit: first, there were inconsistencies in his claims; secondly, the applicant could remember exact dates of events but could not recall the days of the week on which those events occurred. This led the Tribunal to the view that the applicant had rehearsed his evidence. In the Tribunal’s view, these first two points were not sufficient by themselves to conclude that the applicant’s claims were not credible. It was those points in combination with the fact that the applicant made little or no effort to become involved in Falun Gong in Australia that led the Tribunal to its conclusion on credit.
The Tribunal is only obliged to set out in its statement of reasons the reasons for decision, findings of material fact and the evidence on which those findings are made. The Tribunal is not obliged to give a line by line account of its consideration of all the material, only the material and evidence that support the findings actually made. For that reason, the Tribunal was not obliged to refer to the memory loss claim when deciding the issue of the applicant’s credit.
Second issue – expecting an applicant to behave in a particular way
The question of whether a person is a refugee is not answered by determining what a person ought to do: Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473. However, the Tribunal did not do that here.
When considering whether to accept or reject the applicant’s claims, the Tribunal assessed the likelihood of their veracity against what it considered a genuine practitioner would do in Australia. This form of reasoning does not fall foul of the decision in S395/2002. It is no more than applying common sense and experience (gained in the course of the business of a specialised tribunal) to decision making. It is as legitimate as relying on a long delay in lodging a visa application when considering whether a person has a genuine fear of persecution. Such reasoning is based on the premise that people who fear persecution will generally do something about it quickly. Here, the Tribunal’s reasoning was that people who are genuine and committed Falun Gong practitioners will usually practice their exercises. The applicant didn’t (until very late) and so was not a genuine and committed practitioner.
Third issue – conduct in Australia
This issue involves the proper construction of s 91R(3) of the Migration Act 1958 as well as the Tribunal’s reasons for decision.
The issue may be re-stated as follows: does s 91R(3) apply to conduct that may be used against the applicant? The short answer is that the ordinary meaning of the words of the section would, subject to other considerations, make it applicable to any conduct in Australia regardless of whether it would or would not assist the applicant. However, it would be a surprising result that unfavourable conduct would have been engaged in for the purpose of strengthening a claim to be a refugee and even more surprising that the Minister (or the Tribunal on review) would not be satisfied of that. That leads to a consideration of the Tribunal’s reasons.
The Tribunal placed great weight on the “applicant’s behaviour since arriving in Australia”. That behaviour was, in effect, that the applicant “made no effort to become involved in the Falun Gong movement after arriving in Australia”: CB 76.1. It may readily be inferred from this that the Tribunal was in fact satisfied that the applicant had “engaged in the conduct otherwise than for the purpose of strengthening” his claims to be a refugee. There was no basis for the Tribunal to fail to be so satisfied. Such conduct was, as the Tribunal found, inconsistent with the applicant’s claims.
For these reasons, the issue does not really arise. On the broadest construction of s 91R(3), the Tribunal was entitled to have regard to the applicant’s conduct.
However, when construing the section, it is necessary to have regard to its context including the behaviour which was sought to be addressed by its inclusion. This is known as the purposive approach to statutory construction, as opposed to the literal approach: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 111–13; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384 [78].
Section 91R(3) was introduced by the Migration Legislation Amendment Act (No. 6) 2001. The Explanatory Memorandum to the Bill said the following about the purpose of the provision and its effect:
New subsection 91R(3) applies to sur place claims. It is generally accepted that a person can acquire refugee status sur place where, as a consequence of events that have happened since he or she left his or her country of origin, he or she has a well-founded fear of persecution upon return to that country. Difficulties have arisen in cases where Australian courts have found that a person may act while in Australia with the specific intention of establishing or strengthening their protection claims and this intention cannot be taken into account in assessing the existence of protection obligations under the Refugees Convention.
Actions undertaken intentionally to raise the risk of persecution or create the pretext of such a risk, raise also serious questions about the presence of subjective fear in the mind of the protection visa applicant. In order for a fear of persecution to be well founded, it must be both objectively and subjectively based. Under new section 91R, for the purposes of the application of the Act and the regulations to a particular person, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister that he or she engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention.
This maintains the integrity of Australia’s protection process by ensuring that a protection applicant cannot generate sur place claims by deliberately creating circumstances to strengthen his or her claim for refugee status. The Ministerial intervention powers provide an avenue for the Minister to provide a visa, should there be an exceptional case where this is in the pubic interest.
The proper construction of the section must take into account the stated purpose of the provision, namely to address the situation where sur place claims were “generated” by applicants in a misuse of the onshore protection regime. A construction that forbids the Minister from considering adverse behaviour (in the sense that it does not strengthen the claim to be a refugee) does not achieve that purpose.
A proper reading of the provision supports this view. The critical words are “for the purpose of strengthening the person’s claim to be a refugee”. These words clearly address conduct that may support a claim to have a well-founded fear of persecution for a Convention reason. They are not concerned with conduct that does not support such a claim.
In light of the purpose of s 91R(3) and the use of the word “strengthen”, the provision does not forbid the Minister (or the Tribunal) from considering conduct in Australia that would not support a claim to be a refugee. On this basis, it was not necessary for the Tribunal to inquire as to whether the applicant’s failure to engage in Falun Gong activities here was “otherwise than for the purpose of strengthening” his claim to be a refugee before being able to consider that conduct for the purposes of the review.
There is no jurisdictional error in the decision and the application ought to be dismissed with costs.
Written submissions were received from the applicant’s pro bono counsel Mr A Joseph on 6 February 2006. Mr Joseph was appointed pursuant to a referral made under Part 12 of the Federal Magistrates Court Rules. The Court is grateful to counsel for his willingness to assist on this basis. He relevantly submits as follows:
·The applicant adopts paragraphs 1 to 9 of the written submissions of the respondent filed in the court registry on 28 November 2005. Any exception to this adoption will be referred to specifically below.
·The applicant contends that three issues arise in respect of this application, all of which give rise to jurisdictional error having been committed by the RRT. Those matters are:
i)Failure to take into account an integer of the applicant’s claim or a relevant consideration in relation to the applicant’s memory loss.
ii)A misapplication of s.91R(3).
iii)A breach of s.424A of the Act.
(i) Failure to take into account the applicant’s memory loss
·In the statement attending his application for a protection visa the applicant said:
After being released I have suffered from memory loss. I keep forgetting things easily. However, I could never forget those days in the police station. I think I will never be able to forget it and never recover from it.[14]
[14] court book, page 33.7
·The RRT noted the applicant’s claim under the heading “Claims and Evidence” in its decision albeit that the claim was described in terms of the applicant alleging that “he kept forgetting things”.[15]
[15] court book, page 65.7
·In its decision, the RRT was critical of the applicant giving internally inconsistent evidence regarding his Falun Gong practice in China and was particularly critical of the applicant’s inability to recall certain events and details whilst remembering other things.[16]
[16] court book, page 75.7
·Any reading of the RRT’s decision would tend to the view that this alleged inability of the applicant to recall certain events was significant in undermining his credibility in the eyes of the RRT and was important in the conclusion that the RRT reached that it did not accept that the applicant had practised Falun Gong in China[17].
[17] court book, page 76.5
·The RRT has failed to take into account the applicant’s claim of memory loss and the possibility that the memory loss may have affected his recall in reaching the conclusions referred to above.
·It is recognised that the RRT is not required to refer to every piece of evidence in its Statement of Reasons and the omission of reference to a matter does not mean that it has not been considered[18]. The better view, however, is that the importance of the claim of memory loss is such that it should be viewed as an element or integer of the applicant's claim, rather than a mere peripheral piece of evidence. Certainly, the possibility of memory loss affecting the recall of the applicant should be seen as being a relevant consideration of the type considered by the joint judgment in Minister for Immigration v Yusuf[19].
[18]Minister for Immigration v S194 of 2002[2003] FCAFC at [20]-[22].
[19](2001) 206 CLR 323 at para [82] per McHugh, Gummow and Hayne JJ.
·Failure to take the possibility of memory loss into account amounts, in this case, to a failure to exercise jurisdiction by ignoring a matter of central relevance to the claims of the applicant and to the conclusions reached by the RRT in the exercise of its jurisdiction.
·Ultimately, it is a question of construction of the decision. If it is accepted (as the applicant says it ought be) that the RRT’s failure to take the claim of memory loss into account and consider the possibility that it may affect his recall was important to the RRT’s conclusions (ie. If the matter had been considered it may have led to a different conclusion), then the RRT failed to exercise its jurisdiction.
(ii) The misapplication of s.91R(3)
·In this case, conclusions central to the ultimate findings of the RRT were based on findings in relation to the applicant's behaviour after arriving in Australia. The RRT formed the view that the applicant's alleged lack of interest in Falun Gong after arriving in Australia strongly supported the conclusion that the applicant had never been interested in Falun Gong and had in fact fabricated his evidence in relation to his claim for refugee status[20].
[20]court book, pages 75.9-76.5.
·It would seem that this particular provision of the Act has only been judicially considered in the literal manner of consideration of sur place claims[21].
[21]See, for example, NAST v Minister for Immigration [2002] FCA 1536 at paragraph [26] per Wilcox J.
·The applicant submits that the section, properly interpreted, only applies to activities undertaken by an applicant that would strengthen his or her claims to refugee status. Thus, it is only in that limited situation that the question of the onus of proof that lies in the applicant (see s.91R(3)(b)) will arise.
·The processes provided for in the Act in relation to applications for protection visas and reviews of the decision of a delegate are primarily related to establishing a fair process whereby the veracity of a person's claim to refugee status arising from events and actions overseas may be considered.
·It would be an absurd result if the RRT, except in the very limited circumstances of a sur place claim, could take into account the actions of a person in Australia to the same extent as the actual claims which give rise to the application per se.
·Despite the logic in the submission put in the paragraph above, the subsection itself is not clear, on its face. It is expressed as a series of negative propositions and might potentially (and confusingly) give rise to consideration of all conduct not supportive of an application being taken into account. As stated above, this would be an absurd result, given the nature of the RRT’s task, but one that might arise on a literal translation of the provision.
·Given the confusion which arises from the provision in its current state, it is appropriate to look to various aids to interpreting the provision itself. One such aid is s.15AB of the Acts Interpretation Act 1901 (Cth).
·It is appropriate in this matter to give consideration to the extrinsic aids referred to in s.15AB (2) because ss.15AB(1)(b)(i) or (ii) may be said to apply . The primary position of the applicant is that subsection (b)(i) would apply in this case in that the provision in question is ambiguous or obscure. In other words, it is unclear whether the RRT is to take into account all conduct in Australia that does not support a person's claim to be a refugee or rather it is simply to disregard any conduct which would support such a claim unless the person satisfies the RRT in the manner described in s.91R(3)(b).
·In the alternative, subsection (ii) would apply. If the Court accepts that the RRT may have regard to all or any conduct undertaken in Australia which does not strengthen a person's claim to be a refugee, then it is submitted that this leads to a result that is, if not absurd then certainly unreasonable. Putting aside the fact that there may be any number of reasons why a person may behave in a different manner in Australia, compared to in their country of birth (for example, a person may be completely traumatised by events in their home country so that they do not wish to, for example, practise a religion or contact local operatives of a political movement, etc), it is not relevant to deciding whether Australia has obligations to the person in accordance with the provisions of the Act. Obviously, this submission is not made in respect of conduct that would support, or seem to support a sur place claim.
·In this context, it can be seen that both the Explanatory Memorandum and the Second Reading Speech relating to the amendment to the Act which introduced s.91R(3) into the legislation are relevant.
·It is clear from both the Second Reading Speech and the Explanatory Memorandum that the mischief that Parliament was intending to cure was in fact where a person deliberately and intentionally undertook actions to raise the risk of persecution or create the pretext of such a risk to strengthen his or her claim for refugee status[22].
[22]See Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No.6) 2001, dated 28 August 2001 at paragraph 7 and paragraphs 27 to 29 (source: Parlinfo Website - address: See also the Second Reading Speech of the then Minister, Philip Ruddock on 28 August 2001 (same website address at page 4, see paragraphs 39-43 of the Second Reading Speech).
·It is submitted that the intention of the Parliament was to disregard actions aimed at falsely assisting refugee claims - not the reverse of having regard to any actions (or inaction) that did not assist such a claim. To allow regard to be had to such matters, particularly where that was not the intention of Parliament, would be inconsistent with the overall beneficial purpose of the legislation
·The purposive approach of looking at the intention of a parliament in enacting legislation is still regarded as appropriate if a literal meaning of the legislation leads to an inconvenient or improbable result[23].
[23]See, for example, Cooper Brooks (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320-321. Reference may also be made generally to Statutory Interpretation in Australia, 5th edn, Pearce and Geddes at chapter 3.6 to 3.14.
·If the Court accepts the applicant's submission in relation to the proper interpretation of s.91R(3) then the taking into account of activities in Australia in the manner done by the RRT amounts to jurisdictional error. Put simply, if the RRT does so it misconceives its role and misunderstands the nature of the opinion it is required to form[24].
[24]See Coal & Allied (2000) 203 CLR 194 at 208-209.
(iii) Breach of s.424A of the Act
·In the alternative to the submissions put above in relation to s.91R(3) the applicant contends that the manner of taking into account of the activities of the applicant in Australia by the RRT amount to a breach of s.424A of the Act.
·Following the decision of the High Court in SAAP[25] it is clear that provisions such as s.424A are mandatory, can only be complied with in writing, and if they are not complied with, jurisdictional error will occur.
[25]SAAP v Minister for Immigration (2005) 215 ALR 162
·In the relevant part of the decision the RRT notes that the applicant was asked about his activities in Australia and answered questions essentially explaining that his involvement with Falun Gong after arriving in Australia had been very limited[26].
[26]court book, pages 68.5-68.9.
·In deciding whether s.424A(1)(a) applies, two issues arise. Firstly, was the knowledge of the RRT that the applicant had not been involved with Falun Gong in Australia 'information'? If 'information' is to be regarded as "knowledge of relevant facts or circumstances communicated to or received by the Tribunal" - TIN v Minister for Immigration[27], then the fact of the applicant's behaviour in Australia would constitute information.
·The other issue will be whether that information was the reason or part of the reasons for affirming the decision under review. It has been generally accepted that some analysis of the reasons of the Tribunal is required in order to characterise the importance of the information itself to the decision - see SZECS v Minister for Immigration[28].
·The primary submission of the applicant on this point is that such an analysis is largely unnecessary given the clear language of the section. In other words, once it can be established (presuming the analysis is being done after the RRT has published a decision) that information was the reason or a part of the reason then no further analysis is required.
·However, even assessing the decision in order to characterise the information referred to above for its importance, it is clear that the information was significant to the RRT’s assessment of the applicant. The view of the applicant's behaviour in Australia was critical to the overall impression and final conclusions reached by the RRT[29].
·The only issue that then arises is whether the application of the Section is excluded by the operation of s.424A(3). More specifically, the issue that may be said to arise in this case was whether the Applicant gave the information for the purpose of the application (subsection (3)(b)).
·The exclusion in s.424A(3)(b) does not apply in this case. Firstly, as pointed out by his Honour Jacobson J in NAZY v Minister for Immigration[30] there is a difference between evidence put forward "in chief" and evidence raised in response to a query from the RRT[31].
·Here, the RRT member noted that the applicant had been in Australia for some five months before he was taken into detention and then asked the applicant questions about his Falun Gong practice in Australia. It was only in answering those questions that the information arose that was then used to particular effect by the RRT[32].
·A proper characterisation of that information shows that it could not fit within the exception in subsection (3)(b). The applicant was providing answers to questions raised by the RRT, not putting forward the information for the purpose of his application. Further, if the submission above in relation to s.91R(3) is correct, then the information referred to (about the applicant's activities in Australia) could not be relevant to the application and therefore would fall outside of the exception in any case.
·Furthermore, as a matter of fairness, there could be no way that the applicant would be aware of the importance of the answers to the questions about his behaviour in Australia. This is the reason for the existence of the mandatory notification requirements of s.424A. A breach of these mandatory provisions means that the decision in question is attended with jurisdictional error and made without compliance with the terms of the Act. Such error is to be remedied by the issue of constitutional writs[33].
[27][2000] FCA 1109 at para 3.
[28][2005] FCA 1200 per Allsop J at paragraphs [22] to [25].
[29]court book, pages 75.9-76.5.
[30][2005] FCA 744.
[31]NAZY at paras [37] to [39].
[32]court book, page 68.5.
[33]SAAP (op cit) at [77] per McHugh J, [173] per Kirby J and [208] per Hayne J.
Conclusion
·The applicant submits that the three grounds referred to above all display that the RRT’s decision is attended with jurisdictional error in that it failed to exercise the jurisdiction required by the Act. In this case, the behaviour of the applicant is not such that the Court would exercise its discretion against the issuing of constitutional writs and those writs should therefore be made. The matter should be returned to the RRT for rehearing.
The Minister’s written submissions in reply were filed on 2 March 2006. Mr Smith noted that the Minister relied upon her earlier submissions in relation to the issues raised by the Court, and submitted that the Court should disregard the submissions by Mr Joseph on s.424A because no leave to raise that issue had been given. The matter was relisted for hearing and, by consent, I made orders granting leave for the judicial review application to be amended to raise the s.424A issue, and for the Minister to file and serve amended submissions in reply.
Those further submissions in reply were filed on 24 March 2006. The Minister makes the following submissions in relation to the s.424A issue:
The applicant’s submissions are based on a misunderstanding of the decision of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357. In order to understand that submission it is first necessary to have regard to the “information” which is the subject of this ground.
The information which the applicant says was subject to an obligation under s.424A(1) was the applicant’s Falun Gong activities in Australia …. The question posed by the applicant is whether or not that information fell within the exception found in s.424A(3)(b). The answer given is that the information was not put forward “in chief” but rather raised in response from a query from the Tribunal. In this respect the applicant relies upon the decision of Jacobson J in NAZY.
In that case the information that formed part of the Tribunal’s Reasons and in respect of which the Tribunal may have been required to give written particulars was a statement made by the appellant in answer to a question in his application for a protection visa. The Tribunal referred to an inconsistency between the answer to the question and the appellant’s oral evidence to the Tribunal as one of the reasons for rejecting his claim to a well founded fear of persecution. It was argued in that case by the Minister that the information (being the answer to the question in the protection visa application) was given by the appellant for the purpose of the application for review by the Tribunal because the applicant adopted the information in the protection visa application in response to questions by the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131.
Jacobson J found, at [39] that the appellant did not provide the information in the protection visa as part of his application to the Tribunal. Critical to the decision was the fact that the Tribunal relied upon the difference between what was stated in the protection visa application itself and later stated at the hearing as part of its reason for affirming the decision on review. This was explained by Moore J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [20]:
If the Tribunal comes to know of what was said by an applicant at a point before any application for review is made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly, information in the present appeal) being comprehended by s.424A(3)(b). Different considerations could arise if it was clear that the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances, the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate.
Allsop J made a statement to similar effect at [221].
In this case, the information was not contained at all in the protection visa application. Indeed, there was no reference in that application to any conduct in Australia. The only information regarding the applicant’s Falun Gong activities in Australia arose at the hearing held by the Tribunal for the purposes of the review. Thus, it was not the difference between what was stated in the protection visa application and the evidence given at that hearing that formed part of the reason for the Tribunal’s decision. On this basis, the decision in NAZY is distinguishable and s.424A(3)(b) clearly applies to the information regarding the applicant’s Falun Gong activities in Australia.
Accordingly, there was no obligation on the Tribunal under s.424A(1) and there was no jurisdictional error in the Tribunal’s failure to provide particulars of that information in writing to the applicant.
Reasoning
Save for the issues raised at the trial of this matter and in subsequent written submissions, the judicial review application does not disclose any jurisdictional error in the decision of the RRT. To that extent, the application is adequately dealt with in the Minister’s initial outline of submissions filed on 28 November 2005. I also accept the Minister’s subsequent submission that the RRT did not impermissibly require a modification of behaviour by the applicant. I shall now consider the remaining three issues that arose at the trial and subsequently.
The applicant’s memory loss
In his protection visa claims[34] the applicant claimed:
After being released I have suffered from memory loss. I kept forgetting things easily. However I could never forget those days in the police station. I think I will never be able to forget it and never recover from it.
[34] court book, page 33
It was implicit in these claims that the applicant’s memory loss was a consequence of the alleged deprivation and torture that he suffered while in detention in China. The claim of memory loss thereby was intended to corroborate the claim of physical deprivation and torture. Importantly, however, the applicant claimed that he could not forget the events of that physical deprivation and torture. It follows that the applicant did not claim any difficulty in recalling the details of the physical harm he claimed to have suffered.
The RRT was aware of the applicant’s claim. The presiding member referred to it in page 5 of her reasons[35].
[35] court book, page 65
At the hearing, the presiding member raised her credibility concerns about the applicant’s claims with him. The presiding member appeared to be concerned about his ability to recall some things but not others with accuracy. The presiding member asked the applicant how he could recall particular dates on which things occurred with such accuracy as he asserted[36]. The presiding member found it odd that the applicant could remember dates but not days of the week[37].
[36] court book, page 67
[37] court book, page 68
The presiding member found that the applicant’s claims lacked credibility. Relevantly, she said:
There were a number of problems with the applicant’s evidence which lead me to conclude that his claims lack credibility. For example, the applicant gave internally inconsistent evidence concerning his supposed Falun Gong practice in China. The applicant initially stated that he stopped practising Falun Gong when it was banned, then stated that he continued to practise in private, then again stated that he had not practised Falun Gong at all once it was banned. In addition, I formed the strong impression that aspects of the applicant’s evidence were rehearsed. The applicant claimed to remember the exact date that he was detained, even though this event supposedly occurred some years ago. However, he was unable to recall what day of the week this event happened. In my view, the applicant’s ability to recall one of these details but not the other is suspect. The applicant’s suggestion that his wife was able to recall the exact date that someone came to their house with a letter, or indeed that anyone would have full recall of the date is equally suspect. The above points would not of themselves lead to a finding that the applicant’s claims lack credibility, but when considered in conjunction with the applicant’s behaviour after arriving in Australia contribute to an overall impression of the applicant as someone whose evidence is not reliable.
The presiding member went on to consider the applicant’s conduct in Australia and concluded that the applicant had fabricated his claims.
I reject the Minister’s contention that the presiding member’s adverse credibility finding on the applicant’s evidence and power of recall was not determinative. Read as a whole and beneficially, the reasons of the RRT in my view support the conclusion that the presiding member’s credibility concerns about the applicant’s confused evidence and power of recall was determinative jointly with the presiding member’s findings relating to the applicant’s conduct in Australia.
The presiding member did not entirely overlook the applicant’s claim of memory loss. As I have already noted, that claim was referred to in the RRT’s reasons. However, it is not sufficient simply to note a claim – meaningful consideration must be given to it: Singh v Minister for Immigration [2001] FCA 389 at [52]-[59]; SZCOQ v Minister for Immigration [2006] FMCA 189 at [18]. The findings and reasons portion of the RRT decision is silent on the applicant’s claim of memory loss. It is also silent on the applicant’s claim that the events of his detention, physical deprivation and torture were permanently etched on his memory. The presiding member gave no consideration to the issue arising from the applicant’s claims of the effect that severe and prolonged physical deprivation and torture might have on an applicant’s memory. This was not simply an item of evidence. This was an element or integer of the applicant’s claims. By failing to give any meaningful consideration to that element or integer of the applicant’s claims, the RRT committed jurisdictional error: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82].
The s.91R(3) issue
Both the applicant and the Minister agree that s.91R(3) is not a model of clarity and that resort to extrinsic aids of interpretation is warranted. I also agree. The explanatory memorandum and second reading speech for the Bill introducing the section, referred to by counsel, establish that the principal concern of the legislature was to deal with sur place claims. However, the section is not expressly limited to sur place claims and neither do the extrinsic aids to interpretation support a conclusion that it should be so limited. It would have been a simple matter for Parliament to expressly limit the section to sur place claims. It did not do so. It is easy to see why. The mischief which the provision is intended to deal with is conduct engaged in in Australia in order to enhance claims to refugee status. That conduct may take diverse forms. It may take the form of conduct intended to set up a sur place claim. It might also take the form of conduct intended to lend support to a claim of persecution based upon asserted events in the applicant’s country of origin. For example, an applicant may engage in political, religious, or particular social group activities in Australia in order to support a claim that he or she engaged in like activities in his or her country of origin. There may be no sur place claim but the conduct may be intended to have a corroborative effect. In my view, s.91R(3) was intended to deal with all such circumstances. In the first place, it is what the section appears to say on its face. Secondly, it is consistent with what the explanatory memorandum referred to by Mr Smith says. Relevantly, it says:
Under new section 91R, for the purposes of the application of the Act and the Regulations to a particular person, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister that he or she engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention [emphasis added].
A question then is whether decision makers are obliged to ignore all information about such conduct in relation to an application or merely information from an applicant in support of an application.
It is apparent from the terms of s.91R(3) that where an applicant seeks to introduce in support of an application conduct engaged in by him or her in Australia he or she bears the onus of satisfying the decision maker that the conduct was engaged in otherwise and for the purpose of strengthening his or her protection visa claims.
Decision makers may indicate their satisfaction expressly or by necessary implication from their reasons. It is better that they do so expressly. Unless a decision maker can be said to have been satisfied in the terms required by s.91R(3) expressly or by necessary implication, the conduct sought to be relied upon by an applicant must be disregarded. If a decision maker cannot be said to have been satisfied as required and the information is not disregarded, then, in my view, the section will have been breached and, given the mandatory language of it, jurisdictional error will have been established.
Different considerations apply, in my view, where the information about the applicant’s conduct in Australia is introduced by a decision maker or some third party. It would be absurd to impose on an applicant an onus of satisfying a decision maker that information should not be disregarded where it is not the applicant’s information. The applicant may not even know about it. There is no statutory duty on decision makers to disclose favourable information[38]. Moreover, the obligation of disclosure under provisions such as s.424A would be nonsensical if applicants were called upon to comment on why negative information[39] should not be disregarded. The RRT is under no general duty to make its own enquiries, but if it chooses to do so, the RRT must have regard to the information obtained: s.424(1). In my view, that obligation underscores the non application of s.91R(3) in those circumstances.
[38] That is, information supporting the protection visa claims.
[39] That is, information that would be a reason for rejecting a visa application
Another question is whether, if an applicant introduces information about his or her conduct in Australia, and the RRT is not satisfied that the conduct was engaged in otherwise than for the purposes of enhancing an applicant’s refugee claims, decision makers are entitled to use that information to reject an application. In my view, the answer to that question is no. If information is required to be disregarded pursuant to s.91R(3) it must be disregarded for all purposes. It would be unjust and inconsistent with the language of the section to permit information introduced by an applicant relating to his or her conduct in Australia that was engaged in to strengthen refugee claims to be used by a decision maker to dismiss an application but not to grant it. This is not a purely academic question. Information about conduct in Australia may be intended to support a protection visa application by enhancing claims to be a refugee and may have precisely the intended effect. The information may also have the opposite effect by damaging the applicant’s credibility. In either case the information must be disregarded unless the applicant discharges the onus imposed by s.91R(3).
I see nothing in the terms of s.91R(3) or the extrinsic aids to interpretation to support the applicant’s contention that the section precludes a decision maker from taking into account actions or inaction that did not support a claim to be a refugee. It is implicit in the terms of s.91R(3) that a decision maker may take into account such information if satisfied that the applicant’s conduct was not engaged in for the purpose of enhancing his or her claims. The information relating to the conduct may nevertheless be irrelevant or otherwise unavailable to a decision maker but that would depend upon the circumstances of each case.
In the present case the relevant information concerning the applicant’s conduct in Australia was “introduced” by the applicant at the RRT hearing in response to questions from the presiding member[40]. There is a nice question whether, if the information is introduced by an applicant in response to questions from a decision maker, rather than “in chief”, it is part of the applicant’s information supporting his or her application. It is certainly arguable that it is not. However, for the purposes of this case I shall assume that the presiding member needed to consider the impact of s.91R(3). There is nothing on the face of the reasons for the RRT decision to indicate expressly any such consideration. It may nevertheless be implied. The presiding member, having considered the applicant’s evidence at the hearing, concluded that his conduct in Australia established that he had no particular interest in or commitment to Falun Gong. It follows, in my view, that the presiding member was satisfied that the applicant’s conduct in Australia was not engaged in for the purpose of strengthening his claims to be a refugee.
[40] court book, page 68
I find that the RRT did not breach s.91R(3) by failing to disregard the applicant’s conduct in Australia.
The s.424A issue
I accept the Minister’s further submissions in reply on this issue. The factual basis for the asserted breach of s.424A(1) does not exist. The relevant information was advanced by the applicant only at the hearing conducted by the RRT and, accordingly, s.424A(3)(b) applies.
Conclusion
I conclude that the decision of the RRT is vitiated by jurisdictional error. The applicant should receive relief in the form of the constitutional writs of prohibition and certiorari.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 April 2006
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