SZHPP v Minister for Immigration & Anor - [2007] FMCA 1031

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHPP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1031

MIGRATION – RRT decision – Chinese applicant fearing political persecution following conviction of husband for corruption – Tribunal found that he was guilty – reliance on information in applicant’s statutory declaration given to Department – finding of recent invention of claim of innocence – failure to serve s.424A notice – SZBYR distinguished – matter remitted.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(b), 424B, 474, 483A

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214

Applicant:

SZHPP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3376 of 2005

Judgment of:

Smith FM

Hearing date:

23 May 2007

Date of Last Submission:

22 June 2007

Delivered at:

Sydney

Delivered on:

16 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Simon Jeans & Associates

Counsel for the First Respondent:

Ms R Pepper

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 8 March 2005 in matter N04/49919.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 27 August 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3376 of 2005

SZHPP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 18 November 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 February 2005 and handed down on 8 March 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed, but this does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the Migration Litigation Reform Act 2005 (Cth), and Acts Interpretation Act 1901 (Cth), s.8). The Court’s jurisdiction is that of the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but is subject to limitations under s.474, so that I cannot set aside the Tribunal decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed, nor whether she qualifies for a refugee visa.
The listing of the application for final hearing was delayed by reason of the past backlog of migration cases in this Court. My judgment was further delayed due to my allowing counsel for the first respondent an opportunity to make written submissions on an alternative argument presented for the applicant which might not have been fully covered by the amended application. Further submissions were then required on the effect of the judgment of the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26.
In the following judgment, I am able to explain my opinions briefly, and without setting out the sensitive details of the applicant’s refugee claims and the procedures followed by the Tribunal.
The applicant is the wife of a senior bureaucrat in an important province of the People’s Republic of China. She was present in Australia when he became the subject of allegations of corruption, upon which he was convicted and sentenced to death. The applicant claimed to the Tribunal that her husband had been falsely accused and forced to confess, as part of a political manoeuvre within the Chinese Communist Party aimed at disempowering the governor of his province, with whose administration the applicant’s husband had been closely associated. She claimed that she was at risk of being falsely implicated in her husband’s alleged crimes and of suffering other persecution if she returned to China. In support of this fear, she claimed that when she applied in Australia to renew her passport, she was told that she was “in trouble” with the Chinese authorities.
The Tribunal’s statement of reasons explaining its finding that the applicant did not have a real chance of persecution if she returned to China is diffuse, and requires careful analysis. One important finding, which is repeated at many points in the Tribunal’s reasoning, was that “the applicant’s husband was in fact guilty of the offence for which he was convicted”.
The grounds of review now relied upon by the applicant focus upon the reasons given by the Tribunal for making this finding, and argue that they relied upon “information” coming within s.424A(1) of the Migration Act, which had not been put to the applicant for written comment in accordance with the procedures required by s.424B. In particular, it is argued that one of its reasons was an admission of the husband’s guilt drawn from a passage in the applicant’s statutory declaration given to the Department of Immigration in support of the protection visa application. It is also argued that another reason of the Tribunal was a positive inference of “recent invention” drawn from the omission in that statement of any claim that the husband was falsely charged and convicted.
In my opinion, both of these contentions are established in the Tribunal’s opening discussion at page 14 of its reasons under the heading “Findings and Reasons”, and it is unnecessary for me to extract the applicant’s evidence given in the statutory declaration and at the hearing to which the Tribunal referred. The Tribunal said, under the heading “False charge/conviction of husband”:
As set out in my above Claims and Evidence, in the applicant’s written claims provided before the Tribunal hearing, I was satisfied she had alleged her husband had in fact been involved in corrupt activities [the applicant had claimed her husband ‘had (made) a serious mistake’; and he had ‘voluntary confess’]. Therefore I suggested the implied [if not the express] meaning of such claims [prepared with the assistance of a migration agent], were that her husband had in fact committed an offence for which he was prosecuted/convicted. The applicant did not agree and claimed her husband was falsely charged and convicted, and his conviction was motivated by a political power struggle in Guizhou [PRC].
I put to the applicant this new claim [that her husband had been falsely charged/convicted], had not been previously expressed to the Department or the Tribunal and had not even been provided in the extensive written submissions [attached to which was a statutory declaration signed by the applicant], that had been provided to the Tribunal by letter from her migration agent of 14 December 2004 [ie three days prior to the Tribunal hearing]. In fact, in the 14 December 2004 submission, it had been claimed inter alia that in a telephone conversation with her husband, he had advised the applicant he was ‘under investigation due to irregularities discovered in …’. However, no claim was made therein that the husband was in fact falsely suspected/charged/convicted of any relevant offence.
At the Tribunal hearing the migration agent had submitted the applicant was ‘depressed’ and ‘scared’ by what had occurred in the PRC. I had responded that while I might accept this submission, I was of the view the applicant had demonstrated she was quite articulate and clearly capable of prosecuting her claims at the Tribunal hearing and accordingly, I may not be prepared to accept the submission that the applicant was ‘scared and depressed’, sufficiently explained the aforementioned inconsistent evidence.
That said, given the applicant had not made this claim in her extensive previous submissions, it is the Tribunal’s view the claim that her husband had been subject to a ‘false’ charge/conviction, is a recent invention submitted for the sole purpose of enhancing her claim to invoke protection obligations in Australia. Accordingly, the Tribunal is satisfied the applicant’s husband was charged/convicted for a crime he had in fact committed [and ‘voluntary confessed’ to], in the PRC.
(emphasis and parentheses in original)
The quoted references in the first of the above paragraphs, in my opinion, are clearly derived from paragraph 9 of the applicant’s statutory declaration set out at Court Book (“CB”) page 26, which was given to the Department with the visa application.
Counsel for the Minister did not contend that this statutory declaration, or its contents, was “republished” to the Tribunal, so as to come within the exception under s.424A(3)(b) to the Tribunal’s obligations under s.424A(1). She also accepted that no s.424A(1) invitation for comment upon information taken from that source was ever served.
However, she argued that there may have been a second source for information that the applicant’s husband had “voluntarily confessed”. This was a copy of a petition to Chinese authorities, which was given to the Tribunal, and which referred to her husband as having “confessed other offenders” and referred to his “confession” (CB p.78). She also identified a newspaper report given to the Tribunal which referred to the husband as having “confessed other co‑offenders” (CB p.86). Counsel submitted that I could therefore not find that the exclusion in s.424A(3)(b) did not apply (cf. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at [82], [173], [264]).
I reject this argument. The references in the documents given to the Tribunal to the husband’s “confessions” appear to refer to his informing upon other persons, so as to attempt to avoid or mitigate his own sentence, rather than as references to his making voluntary confessions of his own guilt. Moreover, I find that the Tribunal’s reasoning expressly identified the source of the information relied upon it when finding the husband to have been guilty. This was the applicant’s statutory declaration presented to the Department, which the Tribunal quoted and which was material which was not “given” by the applicant “for the purpose of the application” to the Tribunal, within authorities on s.424A(3)(b) which were not disturbed by SZBYR (see (supra) at [16]).
I also accept that the Tribunal drew further support for its finding of the husband’s guilt, by drawing a positive adverse inference from the absence of a claim to the contrary in the applicant’s original statutory declaration. As the reasoning extracted above shows, the Tribunal put to the applicant that the claim that he was falsely charged “had not been previously expressed to the Department”, and that “no claim was made therein that the husband was in fact falsely suspected/charge/convicted of any relevant offence”. The information as to this omission then, in my opinion, provided a reason for the Tribunal’s positive finding that this claim was “a recent invention submitted for the sole purpose of enhancing her claim”. In the Tribunal’s mind, the fact of recent invention then provided evidence to the contrary of what was now claimed. The finding of recent invention therefore provided a reason for the Tribunal finding “accordingly” in its following sentence that “the applicant’s husband was charged/convicted for a crime he had in fact committed”.
In my opinion, the Tribunal’s reference to the absence of the claim in the applicant’s statement to the Department made use “positively” of information taken from that statement within the authorities recently applied in the Full Court in NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174 by Weinberg J at [26]‑[41], and Allsop J at [74]. Applying the language of Weinberg J at [40], in the Tribunal’s mind there were two critical aspects of the applicant’s statutory declaration, first, its reference to “voluntary confess”, and secondly, “what it did not say” in denial of his guilt. In the language of Allsop J, the form of the statutory declaration, including its omission, “was of assistance in concluding”, and was “supportive of the conclusion”, that the husband was guilty. Applying NBKS, I would not find that the Tribunal was merely drawing strength from “identified gaps, defects or lack of detail or specificity in evidence”, so as to come within the alternative analysis established in the line of cases which was distinguished by Weinberg and Allsop JJ, and which was cited with approval in SZBYR (supra) at [18].
Counsel for the Minister’s alternative submission, was that “the correctness of [NBKS] must now be in doubt following SZBYR”. It is also necessary to consider a doubt which SZBYR implicitly casts upon principles applied in SZEEU (supra), in relation to a Tribunal’s reliance upon information found in an applicant’s prior statements to the Department. In particular, upon the opinion of Allsop J at [221] (Weinberg J agreeing at [158]):
I do not regard the operation of s 424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 at [19]‑[23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b).
In SZBYR, one of the reasons given by the Tribunal for affirming the delegate’s decision was that the male appellant’s claimed history was unreliable, inter alia, due to “modifications and refinements between his written claims and his oral evidence”, which revealed “significant discrepancies” (see [4], [8], [9]). The appellants argued in the High Court that this reasoning revealed a failure to observe s.424A(1), by not putting to the appellants the information taken from a statutory declaration given to the Department from which inconsistencies arose (see [15]).
The majority judgment in the High Court dismissed the appeal for three separate reasons, of which the first was that there was no “information” in the statutory declaration which provided “the reason, or a part of the reason, for affirming the decision that is under review” so as to come within s.424A(1) (see [15], [17], [21]). This was because:
Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming the decision under review.
…
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence (see [17], [18]).
In my opinion, the majority judgment’s opinion at [21] and [27] that “on the facts of this case, s 424A was not engaged at all” provides part of the ratio decidendi of the appeal, notwithstanding that the majority judgment also rested upon opinions that the Tribunal’s ultimate decision did not turn upon its credibility findings (see [26]), and that this might provide a discretionary reason for refusing relief (see [29]).
However, I consider that the present Tribunal’s reliance on information from the applicant’s statutory declaration given to the Department is distinguishable from the situation addressed in SZBYR, and I am not persuaded that the High Court has implicitly overruled the authority of NBKS.
I do not consider that the present Tribunal’s reasons for rejecting the applicant’s claim that her husband was falsely accused and convicted can be characterised as being only based upon “disbelief of the [applicant’s] evidence arising from inconsistencies therein” (see SZBYR at [18]). Rather, its reasoning extracted above shows that it found “evidentiary material” in the statutory declaration supporting the making of a positive finding that the husband “in fact committed” the crime for which he was convicted. As I shall explain below, this positive finding was then given significance at several critical points in the Tribunal’s reasons for affirming the delegate’s decision. The evidentiary material found in the applicant’s statutory declaration was both her admission that the husband “had a serious mistake for his duty but he had voluntary confess”, and also the applicant’s failure to assert the husband’s innocence in her statutory declaration, which allowed an inference that an admission of guilt could be positively inferred from this omission. In my opinion, the Tribunal’s finding as to the guilt of the applicant’s husband had, as its reasons, both of the contended species of “information” coming within s.424A(1).
Counsel for the Minister also submitted that the Tribunal’s positive finding about the husband’s guilt did not itself provide “a part of the reason” for its ultimate conclusion that the applicant did not face a real chance of persecution if she returned to China. She relied upon a passage in the Tribunal’s statement of reasons at page 17 under the heading “Reasons for husband’s prosecution”:
The applicant claimed the principal if not sole reason for targeting her husband was to discredit a named political figure with whom he was allegedly associated/aligned. The country information cited in my above Claims and Evidence, satisfied me there is evidence of a great many PRC government officials who are involved in corrupt practices; that persons of significance in the PRC Communist Party recognise that ‘tackling the problem of official corruption is a matter of life or death for the Party’; and that, particularly in recent times, there is extensive evidence of corrupt government officials, and even corrupt Ministers of state, who have been prosecuted and convicted. I also accept it is plausible that some PRC government officials may in fact be falsely prosecuted for alleged corrupt actives in the PRC. That said, for the reasons set out above, I am satisfied the applicant’s husband was in fact guilty of the crimes for which he was subsequently convicted. This does not mean that I would accept his trial was necessarily ‘fair’. However, I am satisfied he did in fact ‘voluntarily confess’ to such crimes as originally claimed.
Notwithstanding this, while I may be satisfied the primary reason the applicant was investigated and convicted was for reasons of his involvement in corrupt practices, I understand it may be possible, as claimed by the applicant, that a significant and essential reason her husband was investigated/convicted, may have also included one of the Convention grounds [eg actual or imputed political opinion or membership of a particular social group]. Country information from inter alia DFAT [cited in my above Claims and Evidence], indicated this could in fact occur.
Therefore, for the purposes of my remaining Findings and Reasons, I intend to assume that a significant and essential reason the applicant’s husband was prosecuted, was for reasons of a Convention ground eg, his actual or imputed political opinion.

This passage itself contains a significant repetition of the Tribunal’s finding as to the husband’s guilt, and I would not conclude that the Tribunal’s statement that “I intend to assume that a significant and essential reason the applicant’s husband was prosecuted, was for reasons of a Convention ground” withdrew or diminished the significance of this finding in the Tribunal’s assessment of the risks facing the applicant herself. Indeed, I consider that the “assumption” adopted by the Tribunal indicated no more than that it preferred not to affirm the delegate’s decision upon the basis that the harms suffered by the husband and feared by the wife did not or would not occur for a Convention reason. The assumption adopted by the Tribunal in the above passage did not address an essential claim of the applicant: that she was at significant risk as the wife of a senior official who had been a victim of a wholly false prosecution for corruption, and whose accusers were likely to wish to silence family members witnessing the injustice.
It is also clear, in my opinion, that the Tribunal maintained at other places in its reasons its rejection of the applicant’s claim that her husband was innocent, and used its opinion that the husband was correctly convicted for corruption as a reason for rejecting many elements supporting the applicant’s claim to be at risk for a Convention reason. Thus:
·At page 15, one of the Tribunal’s reasons for not being satisfied that the deaths of two family members occurred for a Convention reason was that “the primary reason” for the husband being “targeted for harm” “was that he was guilty of the corrupt activities for which he was charged/convicted”.
·At page 19, the Tribunal accepted that the applicant might receive attention from Chinese authorities, but characterised this as not Convention related based upon its finding as to the husband’s guilt. It said: “except to the extent the applicant may for instance, be questioned by the PRC authorities as to the whereabouts of any funds her husband had obtained through his corrupt activities in the PRC, … I am satisfied there is no more than a remote chance the applicant would be of any adverse interest to anyone [at least for a Convention reason], should she return to the PRC”.
·At page 19, the Tribunal concluded: “the Tribunal is not satisfied the applicant has more than a remote chance of being persecuted for a Convention reason, for reasons of her husband’s corrupt practices in the PRC”. The Tribunal did not go on to consider her risk on the hypothesis that he had, in fact, not engaged in “corrupt practices”. It is clear that its initial finding of the husband’s guilt fully explained why it did not feel it necessary to further address this claim.
·At page 21, the Tribunal accepted that the applicant had been refused renewal of her passport “for reasons of her husband’s conviction of corruption”. One clearly stated reason of the Tribunal for not treating this as evidence of a risk warranting a protection visa was: “given I am satisfied the applicant’s husband committed the offences for which he was convicted … I am not satisfied a significant and essential reason for refusing to renew the applicant’s passport was for reasons of a Refugees Convention ground”.
·Further references to its finding of the husband’s guilt are made at pages 22 to 24, where the Tribunal addressed late submissions presented by the applicant’s agent. It is clear from this discussion that the Tribunal thought that it should assess the points raised by the agent only upon the basis that the applicant’s husband was “in fact guilty”, and that the future actions of Chinese authorities in relation to him and his wife would concern a person who was, in fact, a “corrupt PRC official” who had committed “crimes” and engaged in “corrupt activities”.
In my opinion, the Tribunal’s finding as to the guilt of the applicant’s husband pervades the whole of its reasoning when assessing the risk of the applicant being persecuted for a Convention reason if she returned to China. I therefore find that the information relied upon for that finding provided “the reason, or a part of the reason” for the Tribunal’s decision to affirm the delegate’s decision. In the absence of a s.424A(1) invitation in relation to the information identified above, the Tribunal’s decision was therefore affected by jurisdictional error (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162).
No discretionary reason for refusing relief was submitted by the Minister, other than the contention that the breach was immaterial. I have explained above why I reject that contention. The applicant is therefore entitled to the relief claimed.

I certify that the preceding twenty‑five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 16 July 2007