SZHUI v Minister for Immigration & Anor
[2006] FMCA 1042
•19 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1042 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming persecution in China as Christians – whether the RRT failed to deal with corroborative evidence considered – whether the RRT hearing was fair considered – whether RRT reasoning illogical considered – whether the RRT breached s.424A of the Migration Act 1958 (Cth) – whether the RRT able to rely upon findings and reasons of a previous tribunal where its decision had been quashed considered. |
| Federal Proceedings (Costs) Act 1981 (Cth) Migration Act 1958 (Cth), s.424A |
| Fernando v Minister for Immigration (2000) 97 FCR 407 Minister for Immigration v Bhardwaj (2002) 209 CLR 597 VEAN of 2002 v Minister for Immigration (2003) 133 FCR 570 |
| First Applicant: | SZHUI |
| Second Applicant: | SZHUJ |
| Third Applicant: | SZHUK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3631 of 2005 |
| Judgment of: | Driver FM |
| Hearing dates: | 24 July, 8 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Thode |
| Counsel for the Respondents: | Mr J Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3631 of 2005
| SZHUI |
First Applicant
SZHUJ
Second Applicant
SZHUK
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL 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”) handed down on 22 November 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants, a husband, his wife and their child. The first applicant was appointed the litigation guardian of the third applicant, who is a child. I adopt as background, with necessary amendments, the following derived from the written submissions of the applicant filed on 18 May 2006 and the written submissions of the first respondent filed on 23 May 2006.
In June 2002 the applicant husband (“the applicant”), his wife and child arrived in Australia (court book, page 144.1).
The applicant is a 40 year old Chinese citizen from Fujian Province in China (court book, page 11). His wife is also a 40 year old Chinese citizen (court book, page 30). Their child is 12 years old (court book, page 25). All of the applicants are Christians (court book, pages 11, 25, 30). All of the applicants arrived in Australia on 13 June 2002, (court book, pages 13, 41, 45 and 48) travelling on Temporary Business (Class UC) Visas (court book, pages 41, 45 and 48). On 14 July 2003 the applicants applied for protection visas (court book, pages 1-48). The applicant claimed a well founded fear of persecution on the basis of religion (court book, pages 35-39). The other applicants applied only as members of the first-named applicant’s family unit (court book, pages 25-29 and 30-34).
The applicant included in the application a five page statutory declaration setting out his claims (court book, pages 35-39).
In August 2003 a delegate of the Minister refused to grant the applicant, his wife and child protection visas (court book, pages 49-59).
In September 2003 the applicant, his wife and child applied to the RRT for review of the delegate’s decision (court book, pages 60-63).
The applicant included in the application a three page statutory declaration responding to the delegate’s decision (court book, pages 64-66).
At some time prior to 20 July 2004 the applicant attended a hearing before the RRT (“the first Tribunal”). A summary of the applicant’s evidence given to the first Tribunal appears at court book, pages 148-150.
On 20 July 2004 the first Tribunal made a decision affirming the delegate’s decision not to grant the applicant, his wife and child protection visas (court book page 144.1).
In February 2005 the Federal Magistrates Court quashed the first Tribunal’s decision and remitted the matter to the RRT to be determined according to law (court book, page 144.2).
On 7 June 2005 there was a hearing before the RRT, differently constituted (“the second Tribunal”), at which the applicant and his wife gave evidence (court book page 146.6). A summary of the evidence of the applicant and his wife appears at court book, pages 151-157.3.
On 28 October 2005 the second tribunal made its decision, which was handed down on 22 November 2005, affirming the decision not to grant protection visas (court book, page 143).
The first-named applicant’s claims (court book, pages 35-39, 64-66)
The applicant claimed that his family had a long connection with Christianity and that his father and grandfather had been persecuted because of their Christianity. He claimed that he had been a Christian since childhood, and that he had begun to get involved in an underground church in 1993.
In April 1997 he claimed to have been arrested at a Christian gathering, taken to the Public Security Bureau (“PSB”) and detained for a week. Shortly after he was dismissed from his employment. He then decided to organise religious gatherings. On 12 December 1998 he and three others established Gutian Jinling Christians Church. From 1998 to October 2000 this church was developed and its membership grew. The applicant claimed to have been part of the co-ordination committee.
In October 2000, whilst attending a planned baptism, the applicant claimed to have been arrested, taken to the PSB, interrogated and subjected to physical and mental punishment. He claimed to have been transferred to a labour farm in December 2000. There he was forced to do hard physical labour, and was subjected to physical punishment, torture and mistreatment. He suffered a serious injury to his hand in May 2001, and was sent to a hospital. He was thereafter allowed to return home, but was prevented from participating in religious activities and had to report to the police station once a week.
From July 2001 until he left China, the applicant claimed to have organised hundreds of “religious materials” which were widely used and spread by the church.
The underground church secretly arranged his trip overseas and he came to Australia.
The RRT’s decision
The RRT was not satisfied that the applicant’s fear of persecution was well founded. The RRT had serious concerns about the applicant’s credibility, and was not satisfied that all of his key claims were true. This was because the RRT found the applicant’s oral evidence unsatisfactory in many ways; for example he was vague and evasive on occasion, and some of his evidence was inconsistent and exaggerated (court book, page 162.7). The RRT also found that some of the applicant’s claims about his experiences were inherently implausible; for example he was closely monitored by the PSB yet he still managed to distribute religious materials over a lengthy period and get a passport in his real identity in February 2002, and leave China openly and legally in June 2002, and he claimed a fear of persecution for reason of his underground Christian belief and activity, yet did not seek protection on arrival even though his church brothers and sisters helped him “escape persecution” in China (court book, page 162.9).
Whilst the RRT was prepared to accept that the applicant was a Christian and that he was arrested and detained for a short period it did not accept that he was detained for any longer periods. Even if he had been dismissed from his employment, the RRT was satisfied the applicant was not a person of adverse interest to the authorities for reason of his religious belief and practices (court book, pages 163.1-163.5).
The RRT did not accept the claims that the applicant had made about having formally established a church, and being arrested in October 2000, interrogated and mistreated, and then sent to a labour camp. There was no supporting documentary material in circumstances when the RRT thought it could be reasonably expected to exist, and the applicant’s oral evidence to the first and second Tribunals about the structure, policies etc of the church was unconvincing. The applicant’s evidence about the arrest was vague and his evidence about his alleged treatment then and at the labour camp was very general (court book, pages 163.6-163.10).
The RRT accepted that the applicant’s hand was injured, but there was nothing to support that his claims about the circumstances or timing of the injury (court book, page 164.2). The RRT did not accept that the applicant was a key member of an underground church and that he had come to Australia to escape persecution for his Christian religion.
The RRT did not accept these claims because his oral evidence about his religious practice in the years just before he came to Australia was contradictory and unconvincing (court book, page 164.6). Even if the applicant was a key member of an underground church, the RRT did not accept his claim that he fled China in mid 2002 to escape persecution. This was because there was nothing to suggest that the applicant or his church, or its members, recently came or had come to the adverse attention of the authorities for any reason(court book, pages 164.10-165.1).
The RRT was also not satisfied the applicant fled to avoid persecution for reason of his religion as he did not apply, or even enquire, including among fellow Christians at his church in Sydney, about protection in Australia until after his long stay business visa was cancelled, the year after he arrived. The RRT did not accept that the applicant, a reasonably well educated businessman, did not know about such matters. Had he fled religious persecution in China as claimed, the RRT was of the view, given the prominence of refugees in the Australian media over some years, that he would have at least made enquiries or sought advice from fellow Christians or his migration agent (court book, page 165.4).
If the applicant as a Christian joined or formed an unofficial church upon return to China, the RRT was not satisfied that the applicant had a well founded fear of persecution from the Chinese authorities for reasons of religion. The RRT referred to independent country information and accepted that it indicated that the number of religious believers was escalating rapidly and that there are tens of millions of Christians practicing in underground churches throughout China (court book, pages 165.6-166.2).
The judicial review application
These proceedings began with a show cause application filed on 12 December 2005. I conducted a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) on 27 February 2006 and ordered the Minister to show cause why relief should not be granted in relation to three issues arising from an amended application filed on 8 February 2006. The operation of that order was subject to provisos which were not strictly met and a further amended application raising four grounds was filed on 17 March 2006. At the trial of this matter on 24 July 2006 it occurred to me that there might also be a fifth issue.
I made orders permitting the applicant to rely on the four grounds contained in the further amended application and also gave the applicants leave to add a fifth ground provided that a second further amended application was filed by 31 July 2006. This necessitated an adjournment of the trial of the matter and I reserved the issue of the Minister’s additional costs or costs thrown away by reason of the further amendment and adjournment.
In the second further amended application filed on 31 July 2006 the following grounds are raised:
1.The applicant wife gave detailed evidence which corroborated the applicant husband’s claims, for example that “he was dismissed from his workplace” because he was in the underground movement that “the authorities came looking for him every day”, that the applicant “distributed leaflets with his brothers and sisters”, and that the PSB were monitoring the applicant every day: see page 14 of Tribunal’s decision. The Tribunal did not make findings in relation to this corroborative evidence. In the circumstances, the Tribunal fell into jurisdictional error: see WAIJ v MIMIA (2004) 80 ALD 568.
2.The applicant “claimed to have formally established a church … in December 1998, that he and some others were arrested one night in October 2000, interrogated and mistreated and then sent to a labour camp …”: page 21 of RRT decision. The Tribunal rejected these claims because “there is no supporting documentary material whatsoever in circumstances when it could be reasonably expected to exist”. The applicant has two complaints about this finding. First, the Tribunal reasoned that because documentary evidence did not exist the claims were false. This reasoning is wrong. Second, the tribunal did not raise with the applicant its concern that there was no documentary evidence and give him an opportunity to address the concern. On this basis, there was a denial of procedural fairness, being either the common law obligation of procedural fairness or procedural fairness implicit in the hearing obligation in s.426 of the Migration Act.
3.The Tribunal found that the fact that the applicant did not “seek protection on arrival” in Australia but instead delayed one year made his claims “inherently implausible”: see page 20 of Tribunal’s decision. The Tribunal fell into jurisdictional error in making this finding for two reasons:
a)The applicant gave a reasonable explanation for why he delayed one year in applying for a protection visa, specifically that he had a business visa in this period. The Tribunal’s finding that the applicant’s claim was “inherently implausible” was either based on no evidence or illogical, resulting in jurisdictional error.
b)The information on which the Tribunal relied in making this finding was information within the meaning of s.424A of the Migration Act. The Tribunal failed to put the information to the applicant in writing, resulting in a breach of s.424A.
4.The Tribunal made the following findings in contravention of s.424A of the Act:
a)The Tribunal found that “some of the applicant’s claims about his experiences inherently implausible”: page 20.8. In making this finding, the Tribunal relied on information which the applicant put to the first Tribunal (but not the second Tribunal) that the applicant could “get a passport in his real identity in February 2002 and leave China openly and legally in June 2002”. The Tribunal failed to put this information to the applicant in writing.
b)The Tribunal relied on an inconsistency between evidence the applicant gave to the second Tribunal that he was sent to a re-education through labour reform camp and to the first Tribunal that he was sent to a reform through labour camp: see page 20.7 and 21.10. the Tribunal failed to put this inconsistency to the applicant in writing.
c)At page 21.3 the Tribunal relied on the fact that the applicant had failed [to] mention a lengthy detention in his earlier evidence. The Tribunal failed to put this point to the applicant in writing.
5.The second Tribunal, in dismissing the Applicant’s application, relied on evidence given by the Applicant to the first Tribunal at the hearing before the first Tribunal as well as the Findings and Reasons of the first Tribunal. The second Tribunal was not permitted to do so. In the circumstances the second Tribunal fell into jurisdictional error.
The evidence
I received as evidence the court book in relation to the second RRT decision filed on 1 March 2006. I also received the affidavit of Judith Gayton filed in court by leave on 24 July 2006, to which is annexed a transcript of the second Tribunal hearing. It transpired on the first day of the trial of the matter on 24 July 2006 that evidence would be required of the proceeding before the first Tribunal. I received a supplementary court book[1] relating to that proceeding.
[1] filed on 7 August 2006
Submissions
Ms Thode, for the applicants, submits that the RRT failed to give any meaningful consideration to the evidence of the second applicant, which she submits should be taken to be corroborative of the first applicant’s claims. She relies upon the following written submissions prepared earlier by Mr Zipser:
The applicant’s wife gave detailed evidence which corroborated the applicant’s claims, for example that:
a)“he was dismissed from his workplace” because he was in the underground movement (court book, page 156.3);
b)“the authorities came looking for him every day” (court book, page 156.3);
c)the applicant “distributed leaflets with his brothers and sisters” (court book, page 156.5);
d)the PSB were monitoring the applicant every day (court book, page 156.8).
In WAIJ v MIMIA (2004) 80 ALD 568 at [27] the Full Court stated that, where there is material before the Tribunal corroborating an applicant’s claims but the Tribunal considers it unlikely that the events as claimed by the applicant occurred, the Tribunal is “bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility”. Further, the Tribunal must have “realistic regard” to the material: Singh v MIMA (2001) 109 FCR 152 at [59].
In the present case, while the Second Tribunal summarised the above evidence of the applicant’s wife in the section of its decision titled “Claims and evidence”, it made no reference to the evidence in the course of finding that the events as claimed by the applicant were not true. On this basis, it is open to the Court to conclude that this evidence was disregarded or “was not considered by the tribunal to be material” (see Kalala v MIMA (2001) 114 FCR 212 at [23]), giving rise to jurisdictional error.
In addition, Ms Thode took me to the transcript of the second RRT hearing and pointed out in particular the evidence given by the second applicant appearing on pages 18, 43 and 46 of the transcript.
In relation to the second ground of review, Ms Thode relies upon Mr Zipser’s following submissions:
The applicant “claimed to have formally established a church … in December 1998, that he and some others were arrested one night in October 2000, interrogated and mistreated and then sent to a labour camp…” (court book, page 21.6).
The Second Tribunal rejected these claims because “there is no supporting documentary material whatsoever in the circumstances when it could be reasonably expected to exist” (court book, page 21.7).
The applicant has two complaints about this finding.
First, the Second Tribunal reasoned that because documentary evidence did not exist the claims were false. This reasoning is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (MIMIA v SGLB (2004) 207 ALR 12 at [38]), giving rise to jurisdictional error.
Second, as indicated in the transcript of the RRT hearing, the Second Tribunal did not raise with the applicant its concern that there was no documentary evidence and give him an opportunity to address the concern.
On this basis, subject to the operation of s.422B of the Migration Act, there was a denial of procedural fairness: see WACO v MIMA (2003) 77 ALD 1 at [42]-[58]. The denial of procedural fairness arises in one of three ways, either:
a) as an aspect of the common law obligation to accord procedural fairness; or
b) as an aspect of the hearing required by s.425 of the Migration Act (see NAFF v MIMA (2004) 211 ALR 600 at [27] and SAAP v MIMIA (2005) 215 ALR 162 at [15].)
In relation to s.422B:
a) The applicant contends that the interpretation of s.422B in Moradian v MIMA (2004) 142 FCR 170 is correct, but accepts that the decision of Branson J in SZBDF v MIMIA [2005] FCA 1493 to the contrary is binding on the Federal Magistrates Court.
b) If procedural fairness is an aspect of the hearing required by s.425 of the Migration Act, s.422B does not affect this point.
In her oral submissions, Ms Thode submits that the first respondent is wrong in asserting that the second ground is a mischaracterisation of the RRT’s reasons. She took me to page 18 of the transcript of the second RRT hearing at about point 7 where the first applicant was questioned about supporting documents and merely said that he had not brought the documents with him.
In relation to the third ground of review, Ms Thode relies upon paragraphs 23-35 of Mr Zipser’s written submissions as follows:
The Second Tribunal had “serious concerns about [the applicant’s] credibility” and was “not satisfied that all the applicant’s key claims are true”. (court book, page 162.6) The Second Tribunal gave two general reasons for this finding:
a)that “the Tribunal found the applicant’s oral evidence unsatisfactory in many ways”; (court book, page 162.7) and
b)the Tribunal “found some of the applicant’s claims about his experiences inherently implausible”. (court book, page 162.8)
In relation to the latter finding, a basis for this finding was the fact that the applicant did not "seek protection on arrival" in Australia but instead delayed one year in making his claims. (court book, page 162.9)
The Second Tribunal fell into jurisdictional error in making a finding based on the applicant’s delay in applying for a protection visa for two reasons.
First, the Second Tribunal’s summary of the applicant’s evidence given to the Second Tribunal (see court book, pages 151-156.1) indicates that the Second Tribunal did not discuss with the applicant the date he arrived in Australia, nor the date he applied for a protection visa, nor any delay between these two dates. Instead, it appears that the Second Tribunal obtained this information from the evidence given by the applicant to the First Tribunal. (see court book, pages 150.1)
Section 424A of the Migration Act provides:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies–by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
In light of SZEEU v MIMIA [2005] FCAFC 2, a question is whether, where the Second Tribunal relies on information obtained from the First Tribunal, the Second Tribunal is required to comply with s 424A. The answer turns on the meaning of the word “application” in s 424A(3)(b).
There are two reasons why the term “application” in s 424A(3)(b) means the application before the Second Tribunal and does not include the application before the First Tribunal.
First, in MIMA v Wang (2003) 215 CLR 518 at [68] and [76]-[77] Gummow and Hayne JJ stated:
On that second review the respondent, as applicant for a visa, could be expected to appear to give evidence and present arguments, and, so far as the court's orders were concerned, it was a review to be conducted in the ordinary way …
There is a further important consideration which bears upon the correctness of the direction which the Full Court gave about the constitution of the tribunal. It relates to the task that the tribunal will have to perform on a reference back.When the tribunal reviews a decision to refuse a protection visa it must decide whether the applicant is, at the time of the tribunal's decision, a person to whom Australia owes protection obligations. So much follows from the fact that the tribunal exercises afresh the powers of the original decision-maker.
It is implicit in these statements that, where the Tribunal makes a decision and a court subsequently quashes the decision on a judicial review application and remits the matter to the Tribunal to be redetermined according to law, unless the court qualifies its orders in some way, the Tribunal must conduct a second review “in the ordinary way”. On the remitter, the matter is treated as a fresh application.
Second, in MIMA v Al Shamry (2001) 110 FCR 27 at [17] Ryan and Conti JJ stated:
“If … there is ambiguity in the expression as used in s 424A(3)(b), it should be resolved against the Tribunal since subs (3) operates to relieve the Tribunal from affirmative obligations imposed by s 424A(1) for the benefit of the applicant. Consistently with established principles, a construction should be adopted which preserves, rather than diminishes, that benefit.”
If this Court agrees that the term “application” in s 424A(3)(b) means the application before the Second Tribunal, it follows that there was non-compliance with s 424A and hence jurisdictional error.
Second, the applicant gave a reasonable explanation for why he delayed one year in applying for a protection visa, specifically that:
a)he had a business visa in this period; and
b)he was only “recently informed that the visas … have been cancelled” when “he told his agent that he wanted to apply for a work permit”. (court book, pages 35.3 and 148.7)
On the basis of this evidence, the Tribunal's finding that the applicant's claim was "inherently implausible" was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (MIMIA v SGLB (2004) 207 ALR 12 at [38]), giving rise to jurisdictional error.
In her oral submissions Ms Thode submits that the first respondent is wrong in asserting that there was only one review application.
She took me to pages 60 and 71 of the court book in relation to the second Tribunal proceeding and pointed out that two review files were created – the first relating to the first Tribunal review and the second relating to the second Tribunal review.
Ms Thode also notes that the first respondent relies on SZEEU v Minister for Immigration [2006] FCAFC 2 at [177]. Ms Thode points out that Weinberg J, in that paragraph, postulated alternative situations and submits that this case falls into the second class identified by His Honour rather than the first.
In relation to the fourth ground, Ms Thode relies upon paragraphs 37 and 38 of Mr Zipser’s written submissions:
The Tribunal relied on “the information that the Tribunal considers would be … part of the reason for affirming the decision that is under review”, being information which the applicant did not give to the Second Tribunal. Specifically:
a) The Tribunal rejected an aspect of the applicant’s evidence because “it was not mentioned in his earlier evidence” (court book, page 163.3).
b) The Tribunal found “some of the applicant’s claims about his experiences inherently implausible: for example that he was closely monitored by the PSB yet he still managed to distribute religious materials over a lengthy period and get a passport in his real identity in February 2002 and leave China openly and legally in June 2002” (court book, page 162.8). The Second Tribunal obtained part of this information from the evidence given by the applicant to the First Tribunal (see court book, page 149.9).
c) The Tribunal relied on an inconsistency (see court book, pages 162.7 and 163.10) between evidence the applicant gave to the First Tribunal that he was sent to a “reform through education centre” (see court book, page 149.4) and evidence he gave to the Second Tribunal that he was sent to a “reform through labour camp” (see court book, page 152.4).
In each case the Tribunal did not comply with s.424A of the Act. On this basis, there was a contravention of s.424A and hence jurisdictional error.
In her oral submissions Ms Thode took me to page 163 of the court book in relation to the second Tribunal decision at about point 4 where the presiding member dealt with the issue of the arrest and detention of the Mr Meng identified by the first applicant. Ms Thode submits that the presiding member misconstrued the first applicant’s evidence relating to Mr Meng. She took me to pages 34 and 35 of the transcript where the first applicant provided oral evidence concerning his knowledge of the release of Mr Meng and also to page 37 of the court book at paragraphs 10 and 11 where the first applicant had given written evidence to the RRT about the arrest and detention of Mr Meng. Ms Thode submits that it should be accepted that at no time in the second Tribunal hearing was the first applicant purporting to give any evidence about the length of time that Mr Meng was detained.
He was simply informing the RRT of when he found out about
Mr Meng’s release.
I adjourned the hearing of the matter until 10.15am on 8 September 2006 and gave the parties the opportunity to file and serve further written submissions. On 4 September 2006 further applicant’s submissions were filed which noted that the applicant no longer sought the opportunity to rely upon the fifth ground of review which was discussed at the hearing but not included in the further amended application. The result is that the applicants rely upon the first four grounds in the second further amended application filed by leave on
31 July 2006.
Ms Thode completed her oral submissions on 8 September 2006.
She tendered, and I received as evidence, the court book relating to the first Tribunal proceeding.
In relation to the fourth ground of review Ms Thode submitted that, having had the opportunity to review the court book in respect of the first Tribunal proceeding, there was nothing to indicate that the applicant had mentioned the length of detention of Mr Meng in his evidence to the first Tribunal. Ms Thode submits that this creates an implication that the second Tribunal, in its decision, was drawing an adverse credibility finding on the inconsistency between the evidence given at the second Tribunal hearing and the information in the applicant’s protection visa application. Ms Thode took me to the protection visa application on page 37 of the court book and page 34 of the transcript to illustrate the point.
The Minister relies upon the written outline of submissions which Mr Potts augmented orally. In relation to the first ground of review, the Minister relevantly submits as follows:
The first-named applicant’s complaint is that the second-named applicant (his wife) gave detailed evidence which corroborated his claims, but the Tribunal did not make the findings in relation to this corroborative evidence. The evidence said to provide corroboration for the applicants’ claims is identified in paragraph 13 of the applicants’ written submissions. When one in fact examines the evidence given by the second-named applicant to the Tribunal at the hearing, it is not in fact corroborative of the applicants’ claims in the way now asserted.
The first piece of evidence is that the first-named applicant was dismissed from his workplace. The Tribunal was prepared to assume in the applicants’ favour that this was true. The Tribunal said:
Even if, as the Applicant claimed, he was dismissed from his hotel job afterward [sic] this incident, the Tribunal is satisfied that the Applicant was not of ongoing adverse interest to the authorities for reason of his religious belief and practices. This is because the Applicant was able to establish a very successful business and he remained living and working in his home area without the PSB retaining any interest in him.
The next piece of evidence is said to be the wife’s evidence that: “the authorities came looking for him every day”. The wife’s evidence was in fact:
She claimed that when the Applicant was in the underground church he was dismissed from his workplace and she was scared when the authorities came looking for him everyday. Asked when this was the Applicant’s wife said it was in 2001 when police came to her home, not everyday but very often, looking for the Applicant. Asked why they did this she said that it was because he had to report, or she didn’t know, it was just the underground church. Asked if she was a member of this church she said she didn’t go, she stayed at home, when asked if she ever went to any church gathering in China she said she did not know; however, sometimes if people gathered at her home she would listen to them.[2] (counsel’s emphasis retained)
[2] court book, pages 156.3-156.4.
To say that the wife’s evidence in total amounted to evidence that the authorities came looking for him every day is to draw from this evidence a clarity and certainty which is simply not present in the evidence given. It was not unequivocal corroboration of any aspect of the first-named applicant’s claims, such that any failure to expressly refer to it is an amounted jurisdictional error.
The third piece of evidence is that the wife is submitted to have said that the applicant “distributed leaflets with his brothers and sisters”. Again what the wife actually said was (emphasis added):
Asked how the Applicant practiced his religion in China the Applicant’s wife said that she heard him praying and he also distributed leaflets with his brothers and sisters but she didn’t know what the leaflets were about nor did she know who they were distributed to; however, she also claimed that he read the Bible, worshiped and sang hymns at home in China.[3] (counsel’s emphasis retained)
This evidence was also of little value as the wife did not know what the leaflets were about, nor who they were distributed to. To say that this evidence was corroborative of some key element of the applicants’ claim is simply wrong.
Finally the applicants assert that the second-named applicant wife gave evidence that the PSB were monitoring the first-named applicant every day. What the wife in fact said was:
Asked if she personally witnessed any problems her husband experienced in China for reason of his religion she claimed that she saw him dragged to the PSB and she saw the scratch on his hand; however, when this was explored the Applicant wife said that she was told that he had been taken to the PSB but she did see his hand when he returned with the injury from the labour camp. Then she claimed that she just saw the PSB everyday and that they were monitoring him; however, she also said that he would still go and join the gathering. When asked how he could do this if the PSB was monitoring him, she said that he just had to report to the PSB and he worshiped at home.[4]
[3] court book, page 156.6.
[4] court book, page 156.7.
Again, this does not provide any clear corroboration of the applicants’ claims.
In his oral submissions Mr Potts put to me that the evidence given by the second applicant was not relevantly corroborative of the first applicant’s claims. Mr Potts took me to the discussion in the RRT reasons about the second applicant’s evidence[5]. He submits that it is apparent from a reading of that discussion that the presiding member did not consider the wife’s evidence to be materially supportive and, having reached that conclusion, the presiding member was not required to deal with that evidence any further.
[5] court book, page 156
In relation to ground 2, the Minister relevantly submits as follows:
The applicants complain that the first-named applicant’s claim to have formally established a church in December 1998, and that he and some others were arrested one night in October 2000, interrogated and mistreated, and then sent to a labour camp was rejected. The applicants submit these claims were rejected because the Tribunal found that there was no supporting documentary material in circumstances when it could be reasonably expected to exist.
In the first respondent’s submission this is in fact a mis-characterisation of the Tribunal’s reasons. What the Tribunal in fact said was:
The Applicant claimed to have formally established a church with the assistance of three other men, and a pastor, in December 1998, that he, and some others, were arrested “one night” in October 2000, interrogated and mistreated, and then sent to a labour camp at the end of 2000 where he was forced to do hard labour, frequently tortured and mistreated and where he remained until released because he injured his hand protecting the pastor in May 2001. However, the Tribunal does not accept these claims as true. This is because although he provided detail about the number of members, branches, and bible study grounds in the church he and others ‘formally’ established, there is no supporting documentary material whatsoever in the circumstances when it could be reasonably expected to exist, and his oral evidence to the first and current Tribunal’s about the structure, policies etc of his church was unconvincing. The Applicant, also asserted incorrectly, that all religious activities under Government control, but had he established an underground Christian church as he claimed he would know that this was not the case especially in Fujian Province. The Tribunal also does not accept the Applicants’ explanation for establishing his own church, given the proliferation of underground or house Christian churches and groups in Fujian, and the Applicants own claims about the long established Christian tradition in his home area. The Applicants’ evidence about when this arrest occurred was vague, his evidence about his alleged treatment then and at the labour camp was very general, his oral evidence about how many were arrested at this time was inconsistent and changed when the Tribunal queried it. Also, the Applicants’ oral evidence about whether he was sent to a reform through labour camp or re-education through labour camp was inconsistent and when this was put to him he claimed not to know; the Tribunal finds this implausible given the independent country information about the differences.
To suggest as the applicants appear to, that the only reason why these claims were rejected was that there was no supporting documentary material is incorrect.
The applicants seem to have two complaints about the finding. The first is a claim that is was irrational, illogical and not based on findings or inferences of fact supported by logical grounds to say that the claim was false because documentary evidence did not exist. The first respondent submits, first, that the Tribunal did not accept that the claims were true, rather than finding affirmatively that they were false.[6] In any event, the passage quoted above discloses a logical train of reasoning, whereby the conclusions clearly follow from the premises. It was not illogical in any sense of the word for the Tribunal to fail to accept the claim about the establishment of the church because there was no supporting documentary material. It was not illogical to suggest that it could reasonably be expected to exist. This aspect of this ground of review should be rejected.
The applicants then complain that the Tribunal did not raise with the first-named applicant its concern that there was no documentary evidence, and give him an opportunity to address the concerns. This is said to amount to a denial of procedural fairness.
The first answer to this contention is that section 422B completely excludes all Common Law rules of natural justice, insofar as they relate to the hearing rule: MIMIA v Lay Lat [2006] FCAFC 61; and SZCIJ v MIMIA [2006] FCAFC 62 at [8].
It has been submitted that this was an aspect of the hearing required by section 425 of the Migration Act. As Jacobson J, held in SZBJW v MIMIA [2005] FCA 1356 at [35]:
In any event, the weight of authority is that s425 is a procedural requirement. The invitation must be real and meaningful, not an empty gesture. It does not bear on the procedures followed at the hearing which may be affected by any want of procedural fairness; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 121 at [30] and [32]; see also M17/2004 v MIMIA [2005] FCA 86 at [61] – [62].”.
The applicants’ submissions do not in any event disclose any breach of the common law natural justice hearing rule.
[6] court book, page 163.7.
In his oral submissions Mr Potts noted that the allegation of irrationality in the second Tribunal decision was not pressed. Mr Potts also submits that there is no doubt that the natural justice fair hearing rule is excluded by s.422B of the Migration Act by reference to the decision of the Full Federal Court in SZCIJ v Minister for Immigration [2006] FCAFC 62, in particular at [8]. That was a decision on appeal from this Court and hence binding on this Court.
Mr Potts further submits that the principal applicant had ample opportunity to present documents[7] and that there was in any event no procedural unfairness. Mr Potts further submits that it could be seriously argued that the hearing to which the applicant was invited and which he intended was an “empty shell” or “hollow gesture”. He took me to page 18 of the transcript where the issue of documents was discussed with the applicant.
[7] court book, pages 62, 72 and 74
In relation to the third ground of review the Minister submits as follows:
The applicant complained about the Tribunal finding that some of his claims were implausible because he had delayed seeking protection on arrival.
The applicants’ first complaint in this regard is that the date of arrival is said to have be derived from evidence given to the first Tribunal. This is said to constitute a breach of section 424A. The material provided to the first Tribunal hearing was material falling within exception in section 424A(3)(b). Section 424A(3)(b) refers to information “that the applicant gave for the purposes of the application”. There is only one application to the Tribunal. That is not withstanding that there were two Tribunal hearings in this case. This is exemplified by the fact that there was only ever one application submitted to the Tribunal, which was submitted on 23 September 2003.[8] Despite what the applicants submit, there is no ambiguity in this provision. It has, in any event, been held that section 424A(3)(b) applies in such circumstances: SZBQS v MIMIA [2005] FMCA 1066 at [14].
The applicant then complains that the first-named applicant gave a reasonable explanation for why he delayed over a year in applying for his protection visa. There is then a complaint that the Tribunal’s finding was inherently implausible, irrational, illogical, or not based on findings or inferences of facts supported by logical grounds. This is in reality no more than a complaint about the merits of this finding by the Tribunal, and it does not demonstrate jurisdictional error. (counsel’s emphasis retained)
[8] court book, pages 60-67.
In his oral submissions Mr Potts submitted that there was no illogicality in the reasoning of the RRT and that there could be no breach of s.424A if the relevant information was given as part of the review in the first Tribunal proceeding. Mr Potts took me to the recent decision of the Full Federal Court in SZEPZ v Minister for Immigration [2006] FCAFC 107 as supporting the proposition that, where an initial RRT decision is quashed upon judicial review, and a second decision is made, there is nevertheless only one “review”. Mr Potts further supported this proposition by reference to the decisions in SZBQS v Minister for Immigration (op cit) and SZGNY v Minister for Immigration [2006] FMCA 1142 at [15], [19], [20] and [21].
In relation to ground 4 in the application the Minister relevantly submits as follows:
The applicants complain that the Tribunal breached section 424A of the Act. There are three pieces of relevant information.
The first is not encompassed by the further amended application and is raised for the first time in written submissions. It is that the Tribunal rejected an aspect of the applicant’s evidence because it was not mentioned in his earlier evidence. It is clear from the decision in SZEEU v MIMIA [2006] FCAFC 2 that the onus of proving all the elements of a breach of section 424A fall on the applicant, see: SZEEU at 81-82 per Moore J. It is equally clear that, as the Full Court held in NAOA v MIMIA [2004] FCAFC 241 at [21], it is not open to the Court to find that the evidence in question was not obtained at, for instance the first Tribunal hearing, in the absence of evidence proving that to be the case. NAOA was recently followed on this point in: SZGQE v MIMIA [2006] FCA 304 at [23] – [25]. The reference to “earlier evidence” at the critical passage is inherently ambiguous. It is for the applicants to demonstrate by way of evidence that the “earlier evidence” referred to there does not fall within any of the exclusions in section 424A(3)(b). The applicants failed to do this, and this ground therefore fails.
The material referred to in paragraph 37(b) of the applicants’ submissions falls into the category of material provided to the first Tribunal. As submitted above, this was material to which section 424A(3)(b) applied.
Similarly the same conclusion follows in relation to material referred to in paragraph 37(c) of the applicants’ submissions.
The subject of the length of Meng's detention was, in any event, a subject that the first-named applicant never said anything about prior to the hearing. It was an absence of earlier information that was critical. This was not information within the meaning of s 424A: SZEEU at [177] per Weinberg J
In his oral submissions Mr Potts stressed that the onus of proving the facts supporting the asserted breach of s.424A was on the applicants: SZEEU at [82]. Mr Potts took me to the reasoning of Weinberg J in SZEEU at [173] as well as the decision of Allsop J at [264] where they supported that proposition. Mr Potts noted that no transcript of the first Tribunal hearing had been put in evidence and that, in the absence of a transcript, it could not be established whether or not the applicant had mentioned the asserted length of Mr Meng’s detention in evidence given to the first Tribunal. He submits that the reasoning of the presiding member in the second Tribunal is open to the interpretation that the distinction drawn was not between the evidence at the second Tribunal and the protection visa application but, rather, between the evidence given to the second Tribunal and the evidence given to the first Tribunal.
In any event, Mr Potts submits that the applicant adopted his protection visa claims for the purposes of his review application. He took me to pages 62 and 64 of the court book and also pages 65 and 66 of the court book, where the applicant referred to his earlier protection visa claims. Mr Potts also took me to the decision of Young J in SZHIB v Minister for Immigration [2006] FCA 611 at [8] and [23][9].
[9] cf SZGGT v Minister for Immigration [2006] FCA 435 per Rares J at [24], [25] and [36]
In reply, Ms Thode took issue with the proposition that there had been a failure by the second applicant to materially corroborate the evidence of the first applicant, by reference to pages 43 and 48 of the transcript. Ms Thode also took me to Minister for Immigration v NAMW [2004] FCAFC 264 at [139]. In relation to ground 2 Ms Thode maintained that the discussion at page 18 of the transcript did not support the finding made by the RRT. In relation to the s.424A issues, Ms Thode submits that it is open to me to conclude that the second Tribunal did not have before it a transcript of the first Tribunal hearing and that the discussion of the evidence in the first Tribunal decision is simply replicated in the second Tribunal decision. If that be right, Ms Thode submits that it was not open to the second Tribunal to draw any meaningful comparison between the evidence given by the applicant to the second Tribunal and that which may or may not have been given to the first RRT. Ms Thode also found support for the applicants’ contentions in SZEEU at [177] and SZEPZ at [37]-[42].
Both counsel sought the opportunity to make submissions as to costs once judgment was given. Counsel also sought the opportunity to make submissions as to the possible issuing of a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Federal Proceedings (Costs) Act”).
Reasoning
The corroborative evidence issue
The first issue is whether the second applicant gave evidence corroborative of the evidence of the first applicant and, if so, whether the RRT erred in failing to give meaningful consideration to that corroborative evidence: WAIJ v Minister for Immigration (2004) 80 ALD 568 at [27]. I accept that that decision of the Full Federal Court supports the proposition that, where there is material before a tribunal corroborating an applicant’s claims but the tribunal considers it unlikely that the events as claimed by the applicant occurred, the tribunal is bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. I further accept that, where such consideration is required, it would be insufficient to make a mere passing reference to the corroborative material. The consideration given to it must be meaningful: Singh v Minister for Immigration (2001) 109 FCR 152 at [59].
The Minister’s submissions rely upon the description of the second applicant’s evidence described by the presiding member on page 156 of the court book[10]. However, the best evidence of what the second applicant told the RRT is contained within the transcript annexed to the affidavit of Judith Gayton. On page 43 of the transcript the second applicant stated that the first applicant was persecuted “because he was in the underground church so he was dismissed by his workplace” in 1997. On page 46 of the transcript the second applicant gave evidence that in the last year or so before she and her husband left China he practised his religion by distributing religious leaflets, although she was not involved and was not able to say in detail what the leaflets were about. On page 48 of the transcript the second applicant gave evidence, in response to a question from the presiding member whether she had ever seen anybody harm or arrest or mistreat the first applicant because of his religion, that:
I just saw everyday the PSB was monitoring him, it was really scary that he would go to join the gathering.
[10] see paragraph 37 above
The presiding member pressed the second applicant to explain how the first applicant was able to get to religious gatherings if he had been monitored by the PSB. She appeared to qualify her earlier evidence by saying that he only went to gatherings “sometimes” but “later somebody was monitoring”.
It is apparent from the discussion that occurred between the presiding member and the second applicant that the presiding member had doubts about the veracity of her evidence. Nevertheless, if taken at face value it provided some support to the first applicant’s claims.
At page 156 of the court book the presiding member described the second applicant’s evidence in the following terms:
The Applicant wife gave evidence to the Tribunal in front of the Applicant. She claimed that when the Applicant was in the underground church he was dismissed from his workplace and she was scared when the authorities came looking for him every day. Asked when this was the Applicant wife said it was in 2001 when police came to her home, not every day but very often, looking for the Applicant. Asked why they did this she said that it was because he had to report, or she didn’t know, it was just the underground church. Asked if she was a member of this church she said she didn’t go, she stayed at home, and when asked if she ever went to any church gathering in China she said she did not; however, sometimes if people gathered at her home she would listen to them. Asked about her religious practice here the Applicant wife said that she goes to weekly and group meetings here to read the Bible and share testimony with brothers and sisters, and her son goes to Sunday school; she didn’t reply when asked when she became a Christian.
Asked how the Applicant practised his religion in China the Applicant wife said that she heard him praying and he also distributed leaflets with his brothers and sisters but she didn’t know what the leaflets were about nor did she know who they were distributed to; however, she also claimed that he read the Bible, worshipped and sang hymns at home in China. Asked if she personally witnessed any problems her husband experienced in China for reason of his religion she claimed that she saw him being dragged to the PSB and she saw the scratch on his hand; however, when this was explored the Applicant wife said that she was told that he had been taken to the PSB but she did see his hand when he returned with the injury from the labour camp. Then she claimed that she just saw the PSB every day and that they were monitoring him; however, she also said that he’d still go and join the gathering. When asked how he could do this if the PSB was monitoring him, she said that he just had to report to the PSB and he worshiped at home. She named the Applicant’s church as the Gutian Jinling church but she was not involved in it and didn’t really know any names.
The Applicant wife also said that when the Applicant was at home it was very scary because some brothers and sisters were still in hiding. The Tribunal asked then how they could be distributing leaflets if they were hiding, however she could only say that church members worshipped underground, meaning in a home gathering, and one woman moved with her family to Guangzhou. When the Tribunal suggested that this woman may have moved for say, work, the Applicant wife said that this woman was arrested so she went to Guangzhou. The Applicant wife couldn’t say why they, the Applicants, couldn’t also relocate.
Apart from a passing reference to the second applicant’s evidence concerning the woman who had moved to Guangzhou[11] the Findings and Reasons section of the RRT decision is silent concerning the evidence of the second applicant. The Minister invites me to conclude that the second applicant’s evidence was not corroborative of the first applicant’s claims and hence it did not need to be considered any further and that, at least in part, the applicant’s claims were accepted[12]. The applicant, on the other hand, submits that the evidence given by his wife was corroborative of his claims and needed to be given meaningful consideration.
[11] court book, page 165
[12] in particular the claims that the applicant was a Christian and (perhaps) that he was dismissed from his employment because of an incident in 1997
The RRT adopted a somewhat ambivalent attitude towards the applicant’s claims. Generally, the RRT was unwilling to accept his claims and treated them as not credible. The presiding member said[13]:
As indicated to the Applicant during and after the hearing in writing, it has serious concerns about his credibility, and having considered his oral evidence and his post hearing written evidence the Tribunal is not satisfied that all the Applicant’s key claims are true. This is because the Tribunal found the Applicant’s oral evidence unsatisfactory in many ways; for example he was vague and evasive on occasion and some of his evidence was inconsistent and exaggerated; for example when asked about his religious beliefs and practice and whether he prayed or worshipped at home in the few years before he came to Australia, about whether he was sent to a re-education through labour camp or a reform through labour camp, about the religious material he did or did not distribute to strangers, and about the PSB monitoring him or having him under surveillance. The Tribunal also found some of the Applicant’s claims about his experiences inherently implausible; for example that he was closely monitored by the PSB yet he still managed to distribute religious materials over a lengthy period and get a passport in his real identity in February 2002 and leave China openly and legally in June 2002, and he claimed to fear persecution for reason of his underground Christian belief and activity, yet he didn’t seek protection on arrival even though his church brothers and sisters helped him “escape persecution” in China.
[13] court book, page 162
Notwithstanding those adverse credibility findings, the presiding member was prepared to countenance the hypothetical possibility of a factual basis to the applicant’s claim of dismissal from his employment for reasons of his religion[14], that he was a “key member of an underground church he helped established in his home area for a few years up until he came to Australia”[15] and that the applicant was detained and questioned about an unofficial gathering in 1997[16]. Nevertheless, the RRT did not accept the applicant’s claims that he came to Australia to avoid persecution, that he was of any ongoing interest to the Chinese authorities, or that he would suffer a real risk of persecution as a Christian should he return to China.
[14] court book, page 163
[15] court book, pages 164-165
[16] court book, page 166
In WAIJ at [26] and [27] the Full Federal Court said:
The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
It cannot be said in this case that the RRT made comprehensive findings of dishonesty or untruthfulness against the applicant so as to negate allegedly corroborative material. Rather, the RRT had credibility concerns about various aspects of the applicant’s claims which prevented the RRT from accepting them as true and, even if important parts of the claims were true, the RRT was not satisfied that the applicant was of any ongoing interest to the Chinese authorities or that his fears of persecution in the future in China were well-founded. In those circumstances, and on the basis of the reasoning of the Full Court in WAIJ, it was not open to the RRT to fail to have regard to corroborative material before reaching conclusions on the applicant’s credibility.
In my view, the RRT did “have regard to” the second applicant’s evidence which was presented for its corroborative value. To the extent that her evidence supported the applicant’s claim to have been dismissed from his employment because of his religion, the claim was accepted, at least on a hypothetical basis. To the extent that the second applicant’s evidence supported the first applicant’s claim to have been an important member of an underground church established by him in his local area, that claim was also considered on the hypothetical basis that it might be true. To the extent that the second applicant’s evidence supported the first applicant’s claims to be constantly monitored by the PSB and that the authorities came looking for him everyday, that evidence did not add in any material way to the first applicant’s own evidence, which the RRT rejected. When pressed on that issue by the presiding member, the second applicant retreated to a point where her evidence was meaningless. If her evidence corroborated anything, it corroborated the inconsistency of the first applicant’s own evidence on these points. Having described her evidence, it was unnecessary for the presiding member to consider it further.
The documentary evidence issue
On this issue, I accept the Minister’s submissions reproduced at [39] above. This ground mischaracterises the RRT’s reasoning. There was nothing illogical or unreasonable about that reasoning. Whether or not the apparent failure by the RRT to raise with the applicant its concern about an absence of supportive documentary evidence was procedurally unfair under the general law is immaterial. I accept that s.422B relevantly excludes the common law fair hearing rule: Minister for Immigration v Lay Lat [2006] FCAFC 61; SZCIJ v Minister for Immigration [2006] FCAFC 62 at [8]. I further accept that, whatever the signficance of the obligations imposed by s.425 may be, that section does not import by the back door the common law fair hearing rule.
The s.424A issues
These issues arise in relation to grounds 3 and 4 in the second further amended application. First, the applicant asserts that the RRT based its conclusion that the applicant was tardy in seeking a protection visa on the information contained in his evidence of the first Tribunal hearing, which was required to be disclosed.
The Minister does not dispute that the second Tribunal gained the information supporting the adverse credibility conclusion (about the applicant’s tardiness in seeking protection) from the evidence given by the first applicant to the first Tribunal. However, the Minister submits that this was information falling within the exception in s.424A(3)(b) of the Migration Act. There is support for that proposition in the decisions of this Court in SZBQS v Minister for Immigration [2005] FMCA 1066 at [14] and SZGNY v Minister for Immigration [2006] FMCA 1142 at [21] where Smith FM said:
In SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614 at [16]‑[20], I inferred in a situation such as the present that the Tribunal had been reconstituted under s.422, and that the record which could be addressed by the reconstituted Tribunal included a s.424A notice and the applicant’s response given before the setting aside of a previous decision. On appeal, the Full Court did not find it necessary to reach a conclusion whether I was correct in this reasoning, but it accepted my reasoning that the “review” which was being conducted by the reconstituted Tribunal was the review originally initiated by the application for review (see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107). At [39] their Honours said:
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.
I agree with Smith FM. Where the RRT conducts a lawful review of a delegate’s decision, the RRT becomes functus officio and a second review application cannot be made[17]. Where the RRT commits a jurisdictional error, so that the review process must be repeated, there remains only one review application: the obligation on the RRT is to reconsider that application. A second review application could not be made because it would be out of time[18]. Where an applicant puts information to a review tribunal for the purposes of his or her review application, that information is not withdrawn where the tribunal falls into jurisdictional error. Unless the information is specifically retracted by the applicant, it remains available to the tribunal on a reconsideration of the review application. Further, it does not lose its character as information presented to the tribunal for the purpose of “the [review] application”: s.424A(3)(b).
[17] Minister for Immigration v Bhardwaj (2002) 209 CLR 597; SZDMO v Minister for Immigration [2006] FCA 989 at [6] and [8]
[18] Fernando v Minister for Immigration (2000) 97 FCR 407 at [31]; VEAN of 2002 v Minister for Immigration (2003) 133 FCR 570 at [33]
To the extent that the fourth ground relies upon inconsistencies found between the applicant’s evidence to the first Tribunal and his evidence to the second Tribunal I make the same finding. To the extent that that ground relies upon the silence of the applicant at the first Tribunal hearing further consideration is necessary. This concerns the issue of the detention of Mr Meng. It is certainly arguable that the RRT misunderstood the evidence given by the applicant at the second hearing. The transcript discloses that the applicant gave evidence about when he found out about Mr Meng’s release, but did not venture any opinion about the length of time Mr Meng had been detained.
The RRT may have misunderstood that evidence but that misunderstanding does not constitute a jurisdictional error. It is simply an error of fact.The applicants further contend that the RRT drew an adverse credibility conclusion about the applicant in relation to his evidence concerning the detention of Mr Meng by reason of the belief that the applicant had recently invented a claim about the length of Mr Meng’s detention. Relevantly, the presiding member said[19]:
The Tribunal is also prepared to accept … that he and Meng were arrested and detained for a short period during which the Applicant was questioned about the gathering for which they were preparing. The Tribunal does not accept that Meng was detained for at least five years as suggested by the Applicant’s evidence, that Meng was not released until sometime after the Applicant came to Australia (mid 2002), as such a lengthy detention was not mentioned in earlier evidence; the Tribunal is of the view that had this been the case, the Applicant would have mentioned such a serious punishment in the context of his own claims and fears. In addition, such a lengthy detention in the circumstances of the April 1997 arrest is not, in the Tribunal’s view, consistent with independent country information.
[19] court book, page 163
As conceded in the Minister’s submissions, the reference to “earlier evidence” is ambiguous. It could be a reference to the applicant’s protection visa claims or it could be a reference to earlier evidence given to the first Tribunal. The applicants rely upon the silence of the record of the first Tribunal decision about any evidence by the first applicant about Mr Meng. The applicant asserts that the presiding member must be drawing a conclusion based upon a comparison between the protection visa application (which did mention Mr Meng) and the applicant’s evidence to the second Tribunal. However, I do not have a transcript of the evidence given by the first applicant to the first Tribunal. The decision and reasons of the first Tribunal cannot be assumed to be a comprehensive statement of what evidence the first applicant gave. The applicants bear the onus of proof in relation to factual issues supporting an asserted breach of s.424A[20]. In my view, the applicants have not discharged the burden of proof upon them.
[20] see SZEEU v Minister for Immigration [2006] FCAFC 2 at [82]
Even if the applicants had been able to discharge their burden of proof, it would not follow that the passage quoted above establishes jurisdictional error. In SZEEU at [176]-[177] Weinberg J said:
For example, there may be an obligation under s 424A(1) for the Tribunal to invite an applicant for review to comment upon an adverse inference that might otherwise be drawn based upon a discrepancy between what the applicant said in an interview for the purpose of a visa application, and what he or she later said at the hearing. Under Al Shamry, that discrepancy would not fall within the s 424A(3)(b) exception, because the interview was not information given for the purpose of the Tribunal application.
There are variants of this position that give rise to difficulty. If the applicant has never at any stage said anything about the particular subject, and mentioned it for the first time at the Tribunal hearing, an inference might be drawn that his or her account was a recent invention. It is questionable whether there would be an obligation under s 424A(1) to invite comment upon the applicant’s previous silence since this may not relevantly constitute "information" within the meaning of s 424A(3)(b). Yet if the position is slightly different, and the applicant has given a detailed account of the matter on a previous occasion, omitting mention of a detail now raised for the first time in the hearing, there is some support for the proposition that this may constitute "information", and give rise to the s 424A(1) duty.
It cannot be said in this case that at any stage the applicant gave a detailed account of the detention of Mr Meng. He was not in a position to do so. The RRT understood[21] the applicant to be saying in his evidence to the second Tribunal for the first time that Mr Meng had been detained for five years. It is highly questionable whether that conclusion by the RRT gave rise to any obligation of disclosure under s.424A(1). That is especially the case here, where the issue is but one of several concerns the second Tribunal had about the applicant’s evidence. Further, the RRT appears to have been ready to contemplate the applicant’s suggestion (of a five year detention) as if it might have been honestly believed to have been true by the applicant, but rejected it by reference to inconsistent independent country information[22].
On balance, I conclude that the apparent inconsistency in the applicant’s evidence, even if it was based in part upon a comparison with his protection visa claims, did not on the facts of this case give rise to an obligation of disclosure under s.424A(1).
[21] probably erroneously
[22] see court book, page 163, and the passage quoted above at [65]
I conclude that the applicant has failed to demonstrate any jurisdictional error in the decision of the RRT. It is therefore a privative clause decision and the application must be dismissed.
As requested by counsel, I will hear the parties as to costs and in relation to the application of the Federal Proceedings (Costs) Act.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 October 2006
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