SZHHU v Minister for Immigration

[2008] FMCA 679

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHHU v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 679

MIGRATION – Review of Refugee Review Tribunal decision – adverse credibility finding – no obligation to conduct a second hearing – no evidence of bias or bad faith on part of the Tribunal – Tribunal entitled to rely on the what occurred at the previous hearing – no breach of s.424A of the Act – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A, 425, 424, 430, Division 4 of Part 7

SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107
SZHLM v Minister for Immigration and Citizenship (2007) 98 ALD 567; [2007] FCA 1100
NBKM v Minister for Immigration and Citizenship [2007] FCA 1413
SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713
SZFSV v Minister for Immigration and Citizenship [2007] FCA 1860
SZFSV v Minister for Immigration and Citizenship [2007] FMCA 1362
SZEQX v Minister for Immigration and Citizenship [2007] FMCA 2091
SZGZH v Minister for Immigration and Citizenship [2008] FMCA 219
SZILQ v Minister for Immigration and Citizenship [2007] FCA 942
S325/2005 v Refugee Review Tribunal [2005] FCA 125
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966; [2002] HCA 30

Applicant: SZHHU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3659 of 2006

Judgment of: Nicholls FM

Hearing date: 13 August 2007

Date of Last Submission: 21 January 2008

Delivered at: Sydney

Delivered on: 2 June 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr M Izzo

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application made on 8 December 2006 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3659 of 2006

SZHHU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 8 December 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 25 October 2006, and handed down on 2 November 2006, which affirmed the decision of a delegate of the respondent Minister not to grant a protection visa to the applicant.

Background

1. The first respondent has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following background may be discerned.

2. The applicant is a citizen of the People’s Republic of China (“the PRC”) who arrived in Australia on 12 December 2004.  The applicant’s claims to protection are set out in his application for a protection visa and the documents attached to it (see CB 1 to CB 27).

3. His claims essentially arise from circumstances of claimed persecution in China by officers of the Birth Control Office (“BCO”) and the Public Security Bureau (“PSB”) on the basis of his imputed political belief. In particular, the applicant claimed that his wife was forced to undergo a sterilisation procedure following the birth of the couple’s twins on 16 October 2003, and that they were required to pay a fine and that his father was beaten to death by policemen for protesting against the family’s treatment by local officials. The applicant claimed that following these events he distributed copies of a petition for investigation into the actions of local officials to different levels of government and to the public. He also claimed to have assisted a friend (who was a Christian) to distribute “propaganda materials” (anti-abortion) against the PRC Government. As a result he was accused of “stirring” anti-government sentiment and became the subject of investigation.

4. The applicant applied for a protection visa on 25 January 2005.  That application was refused on 21 April 2005.  The applicant applied to the Tribunal for review of the decision on 25 May 2005.  (The application is reproduced at CB 37 to CB 45.)  On 21 August 2005 the applicant appeared before the Tribunal differently constituted (“the previously constituted Tribunal”) and that same day the previously constituted Tribunal gave its decision affirming the decision of the delegate of the respondent Minister.

5. On 7 August 2006 this Court, by consent, remitted the matter to the Tribunal for reconsideration (CB 78.4) (orders of FM Barnes in matter number SYG 2898 of 2005).

6. Another member was constituted as the Tribunal.

7. By letter dated 6 October 2006 (see CB 65 to CB 66) the applicant (through his then migration agent) was invited to comment on certain information by 20 October 2006.  The letter made reference to a number of items of information that, subject to any comments that the applicant may make, would be the reason, or part of the reason, for affirming the decision under review:

   1)Information in the applicant’s passport (as to his return to China in May 2004 from Bahrain) read with information in his protection visa application which could enable the Tribunal to conclude that he had returned to China of his own free will and did not therefore have a fear of persecution in China in May 2000.

   2)Given the applicant’s statement in his statutory declaration (attached to the protection visa application) that he and his wife returned to their home in June 2004, paid the fine in relation to their breach of the “one child policy”, and the applicant wife underwent a sterilisation operation, that even in the event that the Tribunal accepted that he did in fact have three children, it could conclude that he was not at risk of persecution in the future.

   3)There were “significant contradictions” between the applicant’s written statement of claims and his oral evidence (provided at the hearing before the previously constituted Tribunal) which went to the issue of the credibility of his claims.

   4)The applicant left China legally under a passport issued in his own name (evident from his passport and answers in the protection visa application to questions) from which the Tribunal could conclude he was not regarded adversely by the PRC authorities.

   5)The applicant’s claim (in his protection visa application) that he was not the subject of “any criminal investigation or pending criminal charges”, could be read by the Tribunal that this encompassed charges of “stirring up an anti-government movement” and if the Tribunal were to take that view it could conclude that the relevant police and authorities were not actively seeking the applicant as he claimed. 

8. The applicant provided a response by way of his statutory declaration, sent to the Tribunal under cover of a letter from his migration agent (see CB 67 to CB 72). On 25 October 2006 the Tribunal signed its decision which affirmed the decision which was the subject of the review. (The Tribunal’s decision record is reproduced at CB 77 to CB 88.)

Tribunal’s Findings and Reasons

1. The Tribunal appeared to have some concerns about the applicant’s credibility, but nonetheless proceeded to consider the applicant’s claims on the basis that he did have three children, with the latter two being in breach of China’s “one child policy”.  The Tribunal found however that even if it were to accept that the applicant and his wife breached the policy in this way, it would have to assess whether such a breach would place the applicant at risk of persecution.  

2. For reasons which it gave, the Tribunal found that it was not satisfied on the evidence provided by the applicant that he and his wife had breached the “one child policy” and had subsequently incurred penalties. Therefore the Tribunal was not satisfied that the events which the applicant claimed had followed the breach actually had occurred. This included the claimed death of his father and participation in protests. In all, the Tribunal found that the applicant was not at risk of serious harm in the future (see generally CB 86 to CB 87).

3. The Tribunal also found that there were “other issues” which lead it to reject his claim that he was adversely regarded by the authorities (CB 87).  These were:

   1)The contradiction between the applicant’s evidence regarding the arrest of his friend given at the hearing with what he had initially claimed in his protection visa application.  The Tribunal was of the view that had this event actually taken place the applicant would have been able to recall the occurrence of this event with consistency.

   2)Given that the applicant was able to leave China “openly under his own name”, led the Tribunal to the view that the authorities did not have an interest in the applicant as claimed.

   3)It found the applicant’s claims about his alleged pamphlet distribution in protesting against government policies was implausible given that he claimed that he acted in this way for three months in circumstances where the authorities would have easily been able to identify him, and that on his own evidence when he did come to adverse attention, the authorities did no more than come to his house for: “half an hour without charging him or even taking him to the police station for questioning”.

4. In all therefore, the Tribunal concluded that it did not accept that the applicant was a person to whom Australia owed protection obligations, and therefore affirmed the decision under review.

Application to the Court

1. The application before the Court puts forward three grounds of review with particulars:

   “1.Mr Bruce McCarthy, the Presiding Member of the currently consisted Tribunal (“the Presiding Member”), failed to comply with his obligations under Section 425 of the Act.

   2.The Presiding Member of the currently consisted Tribunal has made his decision with bias.

   3.The Presiding Member of the currently consisted Tribunal failed to comply with his obligations under Section 425 of the Act [although with reference to the particulars this appears to be a complaint about s.424A].”

   (Errors in original.)

Hearing before the Court

1. At the hearing before the Court, the applicant appeared in person and was assisted by an interpreter in the Mandarin language.  Mr M Izzo of Counsel appeared for the first respondent.  

Applicant’s Complaints

1. Before the Court the applicant pressed that the Tribunal “was not fair” because it did not give him “another opportunity in the second review”. I understood the applicant to be saying that the Tribunal, once reconstituted, should have given him the opportunity for a second hearing. I saw this complaint as directly pressing ground one of the application. With particulars, the applicant’s complaint therefore is that despite the Tribunal putting certain potentially adverse information to him by way of its “section 424A invitation” the Tribunal was still obliged to provide the applicant with an opportunity to be heard pursuant to s.425 of the Act, given that the earlier constituted Tribunal decision had been set aside by the Court.

2. Elements of the complaint also appeared to be that in circumstances where the hearing before the earlier constituted Tribunal had been held some time ago (“more than one years (sic) ago”), and to the extent that the Tribunal relied on what was said at this hearing, that it was unfair of the Tribunal to have done so.  Although this appears to be explained for reasons both that the subsequent decision had been set aside, and because the applicant’s response to the “s.424A” invitation included “additional information and claims”. 

The Response

1. The first respondent’s position is that the Tribunal complied with its obligation to invite the applicant to a hearing pursuant to s.425 of the Act, and that the applicant attended such a hearing on 29 August 2005 (albeit before the Tribunal member constituting the Tribunal at that time).

2. Both in written submissions and at the hearing before the Court, the Minister’s position was that even though the invalidity of the Tribunal decision made the earlier constituted Tribunal decision “no decision at all”, the invalidity of that decision did not “set at nought” all the procedures undertaken by the earlier constituted Tribunal pursuant to Division 4 of Part 7 of the Act which led to the making of the decision.

3. The first respondent relies on what was said by the Full Federal Court in SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107 (“SZEPZ”) at [38]-[39]. Although dealing with s.424A of the Act, the Minister argued that the reasoning of the Full Federal Court in that case was equally applicable to the issue before the Court now. The Full Court said:

   “38Upon the making of the First Decision, the review of the delegate’s decision undertaken pursuant to s 414(1) was at an end. Assuming the effect of the Consent Orders was to quash or set aside the First Decision, it was incumbent upon the Tribunal to embark upon a review of the delegate’s decision according to law. It was a review by the Tribunal that was required, not a review by a particular member of the Tribunal. It was the decision of the Tribunal that was set aside, not the decision of a particular member of the Tribunal (see [Minister for Immigration and Multicultural Affairs v] Wang (2003) 215 CLR 518 at [31]).

   39In any event, when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.”

4. The Minister’s position is that the reasoning of the Full Court as to whether s.424A of the Act needs to be complied with by a reconstituted Tribunal in circumstances where the obligations in that section have been met by an earlier constituted Tribunal in relation to the same review, applies with equal force to the Tribunal’s obligations under s.425 of the Act.

5. Although the Tribunal had been reconstituted by reason of the invalidity of the first decision, SZEPZ stands as authority for the proposition that the Tribunal’s duty still remains to perform the review initiated by the applicant’s application under s.414 of the Act, that s.425 of the Act is similar to s.424A in that it requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments “relating to the issues arising in relation to the decision under review”, and that there is no stipulation in either section as to the point in time at which this invitation should issue.

6. The Minister’s submission therefore before the Court was that, drawing on the reasoning of SZEPZ, the procedures enacted before the earlier constituted Tribunal are not invalid, even though its decision had been so held. The invitation however, issued by the previously constituted Tribunal in this case complied with the Tribunal’s obligations pursuant to s.425, and that therefore the Tribunal, as reconstituted, did not have to hold a further hearing.

Subsequent Authority

1. Following the hearing of this matter, the Federal Court in a matter on appeal from this Court handed down its judgment in SZHLM v Minister for Immigration and Citizenship (2007) 98 ALD 567; [2007] FCA 1100 (“SZHLM”).  The circumstances before the Court in that case were that the decision made by an earlier constituted Tribunal, following an oral hearing, had been set aside by the Court and the matter was remitted to the Tribunal for redetermination.  Upon remittal, the (differently constituted) Tribunal sent two letters to the applicant (described by the Court as “s.424A letters”) to which responses were ultimately given.  As in the case currently before the Court, the Tribunal did not afford the applicant a second hearing. 

2. It was held in SZHLM (see in particular [32]-[34]) that because the Tribunal had by its letters requested additional information it was therefore required by s.425 of the Act to invite the applicant to a second hearing because the sending of the s.424A letters showed that the Tribunal required additional information to enable it to determine the application before it, and in these circumstances if it was still unable to make a decision favourable to the applicant, had an obligation to invite the applicant pursuant to s.425 of the Act to appear before it. The issue appeared to turn on: “[t]he fact that a previous hearing was held did not discharge this obligation in view of the fact that the Tribunal had requested further information” (see [32]).

3. In light of this, I gave the parties the opportunity to make further written submissions in relation to this issue.  The first respondent filed further written submissions drafted by Mr Izzo of Counsel.  Nothing was received from the applicant. 

Respondent’s Further Submissions

1. These submissions essentially argue the following:

   1)A “formal submission” that SZHLM was wrongly decided.

   2)This Court is not bound by what was found in SZHLM as the judgment did not provide authority for any principle of general application binding on this Court.

   3)SZHLM was inconsistent with other authorities which do bind this Court.

2. The first respondent relied on recent Federal Court authority for the proposition that the mere fact that upon remittal the Tribunal sends an applicant a “s.424A” letter does not enliven an obligation to give a second hearing. The relevant question is whether or not at the time of the “second” decision there are any new “issues arising in relation to the review” within the meaning of s.425(1) of the Act.

3. The authorities relied on by the Minister are:

   1)NBKM v Minister for Immigration and Citizenship [2007] FCA 1413 (“NBKM”) at [25]-[27], a case similar to the situation in the case before the Court now. Upon remittal the Tribunal sent the applicants a “s.424A” letter, but did not invite them to a hearing. The Minister specifically referred the Court to NBKM at [30]-[32]:

   “30In this case, the ambit of the potential issues before the Tribunal as originally constituted was defined by claims made by the appellants, as contained in the materials which were provided to the Tribunal immediately prior to the first hearing, and the evidence given at the first hearing.  As previously mentioned, in July 2006, after the first decision was set aside and the matter was remitted to the Tribunal, the Tribunal wrote to the appellants inviting the appellants to comment upon nine items of information.  These items arose from the contents of the claims which had been before the Tribunal when it made its first decision.  The letter also invited the appellants to submit any further evidence or submissions they wished the Tribunal to consider.

   31The appellants responded through their migration agent by commenting upon the items raised in the Tribunal’s letter, but they offered no further evidence or submissions ….

   32In my view, therefore, there was no information provided to the reconstituted Tribunal which amplified the appellants’ claims. There was, therefore, no material change in circumstances which had the potential to expand the scope of the relevant issues beyond those the subject of the first hearing and the first decision. As the appellants had already had the opportunity to provide evidence and make oral submissions as to those issues at the first hearing, the appellants were not, in the circumstances of this case, deprived of their rights under s 425 ….”

   2)SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713 (“SZJHL”), also a case where upon remittal the Tribunal sent a “s.424A” letter, but the applicant was not given the opportunity of a second hearing in that case.  The Minister submits that the same approach was taken in SZJHL as in NBKM. The Court at [16] said:

   “It was, in my view, perfectly plain – and should have been such to the appellant – that the entirety of his claims and his credibility generally were in issue in the review.  Against this background it cannot properly be said that any further inconsistencies exposed in his s 424A answers relating to his claims or any greater doubts his answers engendered about his credibility raised new or unexpected issues for which, in fairness, a further opportunity for comment ought to have been provided.” 

1. The Minister’s position is that the relevant circumstances in these two authorities, and the reasoning, are directly applicable to the current case.  The delegate’s decision put the applicant on notice that the “overall credibility” of his claims was at issue (see CB 35.6), that further the “s.424A” letter did not raise any issue beyond what had been at issue before the earlier constituted Tribunal, and that even further the applicant’s response did not raise any new issue but addressed, at least, some of the matters to which the Tribunal’s letter had referred.  The Minister submits that those cases are binding on this Court and should be followed.  If the Court were to follow these authorities there would be no obligation on the Tribunal in the current case to hold a second hearing.

2. Second, the Minister submits that the letters which the Tribunal sent in SZHLM appear more properly to be “additional information” within the meaning of s.424, and not letters inviting comment under s.424A. The submission is that this is evident from an examination of the judgment (see in particular [3] and [4] where the text of the first letter is paraphrased and the Tribunal is noted as explicitly referring in its second letter to its earlier letter as “pursuant to s.424 of the Act”). When viewed in light of what were the dispositive paragraphs of the judgment ([32] and [34]), SZHLM supports the proposition that the Tribunal had a “duty” to obtain the “additional” or “further” information it sought before completing the review, that such reasoning is consistent with the language of s.424(1), but does not bear any relationship to the requirements of s.424A. In these circumstances, it is submitted that the decision does not bind this Court given that the current circumstances concern a remittal followed by a letter pursuant to s.424A, not s.424.

3. Third, the Minister also submits that at least in one aspect the reasoning in SZHLM is directly inconsistent with binding Full Court authority.  At [34] in SZHLM, the Court said:

   “There is a further consideration.  The original decision of the Tribunal, having been set aside had ‘no operative effect’ ….  The reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place.”

4. The submission is (made with respect) that it is difficult to see how this could stand in light of what was said by the Full Court in SZEPZ at [39]:

   “An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid.”

5. The Minister’s position is that the only aspect of the invalid decision that is “inoperative” is the decision itself, and that does not mean that any hearing which had previously been afforded under s.425 is invalid and needs to be therefore afforded anew. That this Court should apply the approach taken in both NBKM and SZJHL above in that what is required for the obligation to afford a “second” hearing in the sense contemplated by s.425 to arise is the emergence of a “new issue”.

Further Authority 

1. I note that in SZFSV v Minister for Immigration and Citizenship [2007] FCA 1860 (“SZFSV”), Gray J had before him an appeal from a judgment of this Court (SZFSV v Minister for Immigration and Citizenship [2007] FMCA 1362) involving the issue of whether the Tribunal failed to consider the application before it in accordance with s.425 in circumstances where a subsequently constituted Tribunal did not provide a hearing pursuant to s.425 and relied on the provision of a hearing by the earlier constituted Tribunal.

2. His Honour at [4] said:

   “It seems to me that this appeal raises an important question of principle, namely whether s 425 requires the member newly constituting the Tribunal to invite the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review, when an application has been remitted to the Tribunal to be redetermined according to law, consequent upon a decision of the Tribunal having been set aside by the Court.  Written submissions have been filed by counsel for the Minister on this appeal.  They indicate that there appears to be a conflict of authority as between judgments of single judges of this Court, but there is no clear judgment of the Full Court providing guidance on the application of the relevant principles to such a case.”

3. His Honour made orders that the appellate jurisdiction of the Federal Court in relation to that appeal be exercised by a Full Court (see in particular [7]).  It appears however that before the matter could be heard, the appellant withdrew the appeal.

4. This issue was also considered by Federal Magistrate Emmett in SZEQX v Minister for Immigration and Citizenship [2007] FMCA 2091 (“SZEQX”) and SZGZH v Minister for Immigration and Citizenship [2008] FMCA 219 (“SZGZH”). In both cases her Honour considered the issue as to whether the subsequently constituted Tribunal was obliged to invite the applicant to a “second” or further hearing in circumstances where an earlier constituted Tribunal had provided a hearing pursuant to s.425 of the Act (see SZGZH at [28]-[51] and see SZEQX at [43]-[52]). Her Honour felt that she was not bound by SZHLM and followed NBKM and SZJHL (see SZEQX at [48]). Her Honour particularly noted that there was no reference in SZHLM to NBKM, even though NBKM preceded it.

Consideration: Requirements for a “New Hearing”

1. In the case currently before the Court I did not comprehend the Tribunal’s letter of 6 October 2006 as requiring further information, or seeking further information, from the applicant.  In SZHLM (at [32]) Cowdroy J found that the relevant Tribunal letters “required additional information to enable” the Tribunal “to determine the application before it”. In the case currently before the Court, the Tribunal plainly invited the applicant to comment on information already before it. In my view, this is an important distinction, and puts the circumstances of the current case squarely within the authorities of NBKM and SZJHL.

2. In the current case (as for example before her Honour in SZEQX (see [43])) the Tribunal invited the applicant to comment on information that it already had before it.  In its letter, the Tribunal invited comment on this “existing” information (in the sense that it was already before the Tribunal), and provided a time by which the comments were to be made.  Importantly, the letter stated (at CB 66.4):

   “IF YOU DO NOT GIVE COMMENTS BY 20 OCTOBER 2006, THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.”

3. The applicant did respond by way of what was contained in his statutory declaration reproduced at CB 68 to CB 72.  There is nothing in that response, nor in the covering letter from the applicant’s then migration agent, requesting any further hearing. 

4. In NBKM at [25] Siopis J said in relation to the issue as to whether a “second hearing” was required:

   “It does not follow that because there is no absolute right to a second hearing when a matter is remitted to the Tribunal for hearing according to the law, that there will never be circumstances when the Tribunal will be required to invite an applicant to a second hearing, in order to comply with s 425(1).  Section 425(1) requires the Tribunal to invite an applicant to appear before a Tribunal to give evidence and present arguments relating to ‘the issues arising in relation to the decision under review’.”

5. At the time of the making of its decision the Tribunal did not have before it any matter which could be said to have changed the issues arising in relation to the decision under review between the time of the remittal, the sending of its letter and the time of the making of its decision.

6. As was found in NBKM, similarly in this case, there was no information provided to the reconstituted Tribunal which could be said to have effected a “material change in circumstance which had the potential to expand the scope of the relevant issues beyond those the subject of the first hearing and the first decision” (at [32] of NBKM).

7. Section 425 obliges the Tribunal (in particular circumstances) to invite the applicant to appear before the Tribunal to give evidence and present arguments “relating to the issues arising in relation to the decision under review”. The (determinative) issue arising from the delegate’s decision was the credibility of the applicant’s claims. From the delegate’s decision record (see CB 35.5) the delegate found:

   “Given that there is a substantial implausibility in the applicant’s claims … I am not satisfied as to the overall credibility of the applicant’s claims ….  Therefore … I find that, on his return to the PRC, the applicant does not face a real chance of persecution by that country’s authorities in the foreseeable future ….”

8. Before the previously constituted Tribunal the matters at issue are those as set out (on the best evidence available to the Court) in the Tribunal’s account of what occurred at the hearing (also referred to by the Tribunal in the decision currently before this Court).  I cannot see that the Tribunal’s letter of 6 October 2006 raised any issue beyond what already had been at issue arising from the delegate’s decision, and at the hearing before the earlier constituted Tribunal.  Plainly, the letter related to evidence given by the applicant at that hearing, documents which the applicant had provided in connection with his protection visa application, and, importantly, inconsistencies or various implausibilities in that material.

9. Nor, further, does the applicant’s response to that letter raise any new issue.  That is, anything further than matters going to the plausibility or implausibility of the applicant’s claims.  Nor did it raise any new or additional matters relating to the substratum of facts already in existence before the Tribunal.  Plainly, the applicant’s response addressed some of the matters to which the Tribunal’s letter had referred.

10. I agree with the first respondent that the circumstances of this case are squarely on par with both NBKM and SZJHL and that those cases are binding on this Court.  In these circumstances, I cannot see that there was any obligation on the Tribunal to conduct a “second hearing”.

11. The Minister also submitted that there is at least one aspect of the reasoning in SZHLM that is directly inconsistent with Full Court authority which is binding on this Court.  At [34]:

    “There is a further consideration.  The original decision of the Tribunal, having been set aside had ‘no operative effect’: see SZILQ [2007] FCA 942. The reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place.”

12. I should just note that in SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 the Court found that a “reconstituted” Tribunal made an adverse credibility finding which was not based on evidence taken directly from the applicant. It had not put any written questions to the applicant which may have elicited responses, which then may have provided the foundation for an adverse finding. Yet in its findings that Tribunal commenced its reasoning by rejecting the applicant’s claims on the basis that the applicant in that case was not a credible witness. In these circumstances the Court found that the Tribunal was required to hold a hearing to enable such evidence to be taken.

13. This can be distinguished from the circumstances in the case currently before the Court in that the Tribunal’s letter of 6 October 2006 did elicit a response from the applicant which formed part of the material before the Tribunal from which it drew its adverse view of the applicant’s credibility.

14. In any event, what is at [34] of SZHLM as quoted above, appears on its face to present a difficulty to this Court as it appears, with respect, to be inconsistent with the decision of the Full Court in SZEPZ where at [39]:

    “An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid.”

15. I understand the reasoning in SZEPZ, when applied to the circumstances before the Court now, to provide authority for the proposition that a Tribunal decision which has been set aside (“no decision at all”), does not mean that any hearing pursuant to s.425 which had been conducted by the earlier constituted Tribunal is invalid, and leads to an obligation on the reconstituted Tribunal to afford a hearing as if the first hearing had not taken place.

16. I comprehend, with respect, NBKM and SZJHL to be consistent with SZEPZ on this issue to the extent that there is no obligation for a “new” hearing unless there emerges some “new issue” in the sense encompassed by the obligation in s.425 which obliges the Tribunal to invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Plainly, if the issues arising in relation to the delegate’s decision have already been the subject of a hearing, then NBKM and SZJHL do not contemplate an additional hearing being required.

17. In the case currently before the Court, for the reasons already referred to above, no new issue emerged such as to engage the necessity for a further hearing.  In all, as did Emmett FM, I follow SZEPZ, NBKM and SZJHL, and find that ground one of the application is not made out.

Bias

1. Ground two in the application asserts that the Tribunal made its decision “with bias”.  Particulars (a) and (b) to this ground especially reveal that the applicant’s complaint in this regard is that the Tribunal member was biased because he relied on evidence provided by the applicant at the hearing before the previously constituted Tribunal, and “ignored” that the decision of the previously constituted Tribunal was set aside by the Court.  I understood the general assertions at particulars (c) and (d) as emphasising that it was an error going to the exercise of its jurisdiction for the Tribunal to have ignored the Court’s setting aside of the decision of the previously constituted Tribunal.

2. To the extent that the applicant complains that the Tribunal was biased because it relied on what occurred at the hearing before the earlier constituted Tribunal, this complaint does not succeed.  The Tribunal member was entitled to rely on the evidence that the applicant gave to the earlier constituted Tribunal.  In applying what the Full Court said in SZEPZ, plainly a remittal of a matter to the Tribunal does not create a “new review”, but a continuation of the review already initiated until such time that a final decision is made thus completing the review.  

3. As the Minister submits, the Tribunal was entitled to have regard to that evidence (see S325/2005 v Refugee Review Tribunal [2005] FCA 125). But even in the event that it was not, the mere fact that the Tribunal relied on this material certainly does not evidence bias on its part, nor indeed would it reasonably create the apprehension of bias on the part of the well-informed lay observer (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157). The test of bias requires that the decision-maker did not bring an open mind to the proceedings and could not be persuaded otherwise. In this case, the Tribunal plainly gave the applicant the opportunity to comment on matters arising from that earlier evidence. I cannot see that the applicant’s complaint can succeed. Bias is not evident generally in what is before the Court, nor specifically to the complaint as asserted by the applicant.

4. Further, to the extent that particulars (c) and (d) generally assert that the Tribunal exceeded its powers and identified a wrong issue or asked a wrong question, then, in the absence of any particulars (beyond the reference to what is set out in particulars (a) and (b)), I cannot see that the applicant’s complaint goes any further than what has already been dealt with above.  In any event, nor can I otherwise see that these complaints can be made out on the material before the Court.

Ground Three

1. Ground three, although stated initially to be a complaint about s.425, by its terms plainly complains of a breach of s.424A. However, the applicant does not explain what information the Tribunal member is said to have failed to provide him “honestly and fairly”, and what information he failed to invite him “to comment on”.

2. Plainly, the Tribunal wrote to the applicant on 6 October 2006 pursuant to s.424A. It sought his comment on matters which would be the reason, or part of the reason, for affirming the decision under review. There is nothing in the material before the Court now to show that the Tribunal relied on other matters or information in affirming the decision which would have enlivened the obligation in s.424A(1), thus fulfilling any obligation that may have been said to arise pursuant to s.424A(1) of the Act.

3. I note, however, that to the extent that the applicant may be seeking to complain that the Tribunal did not put to him its reasoning, or its thought processes which were adverse to him for comment (for example, perhaps by giving him a draft of its reasoning for comment), then given what was said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18], this is not considered to be “information” for the purposes of s.424A(1), nor are inconsistencies in the applicant’s evidence and material “information” for the purposes of s.424A(1). To the extent therefore that the Tribunal pointed to contradictions between the applicant’s written and oral evidence, the applicant’s complaint does not succeed because s.424A(1) is not enlivened in those circumstances.

4. Further, I note that in SZJXH v Minister for Immigration and Citizenship [2007] FCA 1691, a matter on appeal from this Court, Greenwood J said at [25]:

   “One question which has arisen for particular assessment is the question of whether it was appropriate for the Tribunal in evaluating the evidence of the appellant to have regard to evidence given to the Tribunal constituted in its earlier form. It is clear however, that information given to the earlier Tribunal is information given by the appellant as part of the ‘application’ and there is no failure to comply with s 424A(1) having regard to the exception contained in s 424A(3)(b) of the Migration Act.  I regard the legitimacy of recourse by the Tribunal to the earlier evidence given by the appellant to an earlier Tribunal, as an entirely settled matter.  Note the observations in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [39].”

5. In this regard information provided by the applicant (including his evidence) to the Tribunal as earlier constituted would in the event that s.424A(1) was enlivened be caught by the exception contained in s.424A(3)(b).

Other Matters of Assistance to the Applicant?

1. Given that the applicant appeared unrepresented before the Court, I did consider whether there was any other matter arising on the material before the Court that may be of assistance to the applicant.

2. In this regard I considered whether there was such probative material before the Court to sustain a number of its findings where the Tribunal appeared to rely on what it said was in the “public record”.  

3. In its analysis, the Tribunal made reference (at CB 87.4) to:

   “It is a matter of public record that China has a system of ‘household registration’ under which all people residing in a household are recorded.”

   And further at CB 87.9:

   “It is a matter of public record that the PRC government depresses dissidents.”

   In each case, the Tribunal used what it said was on the “public record” to make findings adverse to the applicant.

4. I also considered whether the Tribunal complied with the requirements of s.430 of the Act, in particular s.430(1)(d) (“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that … refers to the evidence or any other material on which the findings of fact were based”) by making only a reference to the “public record” without further specificity.

1. I note first that a Full Court of the Federal Court in Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741 at [17] said that a failure to fully comply with the provisions of s.430 of the Act is not in itself jurisdictional error (see also Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [70], per McHugh J).

2. I am satisfied that the Tribunal did, in any event, comply with the requirements of s.430(1)(d) in that, while for the purposes of s.430(1)(a), (b) and (c), the Tribunal is required to “set out” certain matters, all that is required in relation to s.430(1)(d) (evidence and other material on which the findings of fact are based) is merely a reference to such material. A reference, therefore, to what is said to be a matter of: “public record” in the decision record would satisfy this requirement.

3. I also note what, relevantly, was said by Gleeson CJ in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 76 ALJR 966; [2002] HCA 30 at [7]:

   “A review of such a decision is not an adversarial proceeding.  There is no contradictor.  No issue is joined.  The applicant seeks to persuade the tribunal that the unfavourable decision under review should be set aside.  Typically, the primary decision will have taken into account country background information.  Both the delegate, and the tribunal member to whom the application for review is assigned, will be likely to have considered many cases involving conditions in, say, Indonesia, and will have access to official and other sources of information bearing upon political and social circumstances in an applicant's country of origin.  As is often the case with administrative decision-makers, they are likely to accumulate knowledge from the repetitive nature of the matters with which they deal.  They have available to them what is, in effect, a library of reference material to which they may resort for the purpose of making decisions.  The Act (s 420) requires the tribunal to do substantial justice, deciding each case on its merits and avoiding technicalities.”

4. In the current case the Tribunal’s references to what is said to be a matter of “public record” should, in context, be read fairly to be a reference to the accumulation of knowledge before the Tribunal of the matters to which they relate.  That China has a system of “household registration”, and that the “PRC government represses dissidents” are such matters as to fall within that accumulated knowledge.  In all, therefore, I cannot see that this issue can assist the applicant.

Conclusion

1. For the applicant to succeed the Court would at least need to find jurisdictional error on the part of the Tribunal.  In all, I cannot discern jurisdictional error as it is said to arise from the application before the Court, nor otherwise.  This application is therefore dismissed.  

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  2 June 2008