SZHXB v Minister for Immigration
[2006] FMCA 1118
•15 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1118 |
| MIGRATION – Refugee – claims to persecution based on “black child” status in breach of China’s one child policy and on the ground of religion – Tribunal decision previously quashed and matter remitted to the Tribunal by consent for reconsideration – reference by the Tribunal to the interview conducted by the Tribunal as previously constituted – whether there had been a failure to accord the applicant a hearing pursuant to s.425 – whether the Tribunal had properly considered the effect of an interview by Chinese officials with the applicant’s parents while they were detained at the Baxter Immigration Detention Centre – no error found – application dismissed. |
| Migration Act 1958, ss.425, 422B, 421, 422, 424A, 414(1), 424A(3)(a), 424A(1) |
| WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 |
| Applicant: | SZHXB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3752 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 May 2006 |
| Date of Last Submission: | 3 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Archibald |
| Solicitors for the Applicant: | Michaela Byers |
| Counsel for the Respondent: | Mr. Braham |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant’s litigation guardian file and serve submissions on costs by 25 August 2006. The first respondent to file submissions on the issue of costs by 1 September 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3752 of 2005
| SZHXB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 20 December 2005 seeking review of the decision of the Refugee Review Tribunal (“The Tribunal”) made on
25 November 2005 to affirm the decision of a delegate of the respondent Minister made on 24 April 2003 to refuse a protection visa to the applicant.
The applicant before the Court is a young child born in Australia in 2001. The applicant's claims for protection in Australia were not originally set out in her application for a protection visa. This document is reproduced in the Court Book (“CB”) at CB 1 to CB 25. The relevant documentation in the Court Book reveals (CB 27) that following receipt of the applicant’s application for a protection visa on 10 April 2002, the first respondent's Department wrote to the applicant's parents on 15 July 2002, and gave them a further 14 days to provide a statement of their daughter's claims. By letter dated 22 July 2002, received by the first respondent's Department on 24 July 2002, the applicant's migration agent responded to that letter (CB 28 to CB 29), and attached completed parts of the relevant application form (CB 30 to CB 52) and a statement by the applicant's mother which is reproduced at CB 53 to CB 54. Following refusal of this application the applicant sought review of the delegate’s decision by the Tribunal. The application for review is reproduced at CB 107 to CB 111. At this point the applicant’s claim for protection was that as a citizen of the People’s Republic of China who was born (albeit in Australia) in contravention of the Chinese “one child policy”, who was not “registered” in China and had “black child status”. As such she would be denied access to education, employment and opportunity as was available to “other normal people”.
The relevant background relating to the processing of this application (as drawn from the Tribunal's decision record which is reproduced at CB 197 to CB 241) is that on 27 February 2004 a differently constituted Tribunal affirmed the decision not to grant a protection visa to the applicant (there is no copy of this decision in the relevant material put before the Court now). A subsequent application for judicial review was dismissed. However, on 31 August 2005 the Full Federal Court (by consent) quashed the decision and remitted the matter to the Tribunal for further consideration according to law. The Tribunal decision before me now is a result of this consideration.
In addition to a number of submissions made by the applicant's various advisers, documents were also submitted to the Tribunal on behalf of the applicant. These are reproduced in the material from CB 112 to CB 195. This material also contains/indicates:
1)A written request for information dated 27 November 2003, sent by the Tribunal to the applicant (CB 121), and the applicant's adviser’s response enclosing further country information (CB 123 to CB 136). This does not directly give rise to a matter in dispute between the parties.
2)A request in writing to the applicant, dated 21 January 2004, seeking comment on certain information (CB 137 to CB 139), and the applicant's response (made on her behalf) received by the Tribunal on 16 February 2004 (CB 140 to CB 142).
3)By letter dated 12 October 2005 (CB 147 to CB 148) that the applicant, and her parents, were invited to a hearing before the Tribunal.
4)
The applicant's advisers (by this time the applicant appears to have changed representatives) wrote to the Tribunal on
24 October 2005 with further submissions in support of the applicant's claims (CB 150 to CB 172).
5)The applicant, and her parents, attended a hearing before the Tribunal on 16 November 2005 (CB 173).
6)
The applicant’s representatives made further written submissions by letters dated 18 November 2005 (CB 174 to CB 180),
23 November 2005 with attachment (CB 181 to CB 182), and a further letter also dated 23 November 2005 with attachment (CB 183 to CB 185).
7)By letter dated 25 November 2005 (CB 186) the Tribunal sent to the applicant, and her adviser, a copy of independent country information as had been promised at the hearing it conducted with the applicant, her parents and her adviser (CB 187 to CB 195).
The Tribunal's decision record is reproduced at CB 198 to CB 241. The Tribunal summarised the applicant's claims as recorded by the previously constituted Tribunal, reproduced at CB 200.9 to CB 217. This included a lengthy reporting of the hearing that the previously constituted Tribunal conducted with the applicant's parents, and references to submissions and documentation that was before the previously constituted Tribunal.
Generally, the applicant's claims were seen as deriving from her situation as being a child of parents who had breached the Chinese government’s one child policy, and the harm that would accrue to the applicant amounting to persecution should she go to China in these circumstances, and in circumstances where she would remain “unregistered” in China. By way of submission made on 24 October 2005, which followed the remittal from the Full Federal Court, the applicant's adviser made submissions on her behalf (CB 150 to CB 170) which the Tribunal saw as putting the applicant’s claims on the following bases:
1)Coming from a Christian Catholic family the applicant would be brought up in this religion, and that should she go to China she would be persecuted on the basis of her religious beliefs and practice.
2)As a member of a particular social group – “black” children born in contravention of the one child policy – she would be persecuted if she went to China. The applicant's parents had already received an excessive fine for breaching the one child policy.
3)The applicant's parents had been “interrogated” by Chinese government officials while they were held in detention (by the first respondent) in Australia (at the Baxter Immigration Detention Centre (“Baxter IDC”)). The applicant's parents feared that the applicant would be persecuted if she were to go to China for having applied for protection in Australia and/or being the daughter of parents who had done so.
The Tribunal's account of what the applicant’s mother and father put to it is reproduced at CB 219.7 to CB 223.10. The Tribunal's account of what the applicant’s adviser said at the hearing is reproduced at CB 224.1 to CB 225.10. The adviser’s “post-hearing submissions” are noted at CB 226.1 to CB 227.5.
The Tribunal's “Findings and Reasons” are set out at CB 227.5 to CB 240.7. The Tribunal found:
1)The applicant was a national the People's Republic of China (CB 227.6).
2)The applicant's parents were not credible witnesses in relation to the claims to fear persecution on the basis of the applicant’s (and her family’s) Christian Catholic religion (CB 228.7).
3)Based on information provided by the applicant's parents, that it did not accept that the applicant and her parents would join a (Christian) church on their return to China (either an officially sanctioned church, or an “underground” church) (CB 229 .8).
4)As “entirely speculative” the claim put on the applicant's behalf in a letter of 22 November 2005 that the applicant “will be a Christian one day”, when she reaches adolescence (CB 229.9).
5)It accepted that the applicant’s parents had a second child outside of the one child policy, and as a result would be required to pay fines to ensure her education (CB 231.9).
6)It accepted that the applicant was born in Australia without the approval of the Chinese authorities, in circumstances where she was therefore born outside the parameters of the Chinese government’s one child policy (CB 231.3).
7)It accepted independent country information available to it that there was “a lack of meaningful distinction between “registered” and “unregistered” children, and the nominal cost of education and health care” (CB 233.3).
8)It could distinguish the applicant's circumstances from another case before the Tribunal which the applicant's adviser submitted was similar to the applicant’s case and should be followed. This was on the basis that the Tribunal did not accept that the applicant’s parents were “genuine” in the claimed Christian faith, and found that they had become involved in Christian activities in Australia purely to strengthen the applicant’s claims for a protection visa (CB 233.6).
9)It was not satisfied on the evidence before it that the consequences of either not being registered or having to pay a fine would be “serious harm” amounting to persecution for a Convention reason (CB 233.8).
10)It accepted independent information that showed that there was a considerable relaxation of the one child policy in the applicant’s home province (CB 234.7).
11)That while it accepted that children born outside Chinese family planning policies (“black children”) constitute a particular social group for the purposes of the Convention, it found that the applicant's status as a “black child” could be “removed” once her father paid a social compensation fee which would allow her registration (CB 234.8).
12)That in all of the circumstances relating to the applicant, it was not satisfied that the fear expressed on her behalf was well founded (CB 235.5).
13)That given all that had been put forward, it was satisfied that neither the applicant, nor her parents, would be subjected to discrimination or other serious harm for a Convention reason if they were to go to China because of the applicant’s unregistered birth (CB 235.6).
14)That it was also not satisfied that the essential and significant reason for any difficulty the applicant’s parents may have on returning to China would be for any Convention related reason (CB 235.8).
15)It did not accept that any fear of harm to the applicant’s parents would occur, if they returned to China (CB 236.2).
16)It accepted that following the interview of the applicant’s parents, conducted with Chinese authorities in the Baxter IDC on 25 May 2005, the Chinese authorities became aware of the applicant’s birth. It was satisfied from the questions that the authorities put to the applicant’s parents that it was reasonable to conclude that the purpose of interviewing the family was to facilitate the issue of a travel document to the applicant for her to travel to China (CB 237.9). This was also in response to the claim put to the Tribunal by the applicant's adviser, by letter on 16 February 2004, that in order to obtain a passport for the applicant the applicant’s parents would need to declare her birth to Chinese government officials in Australia. Further, that this would result in bringing their attention to the fact that the applicant was born in breach of the relevant family planning laws, and that her parents had not only breached the law on one occasion but several.
17)Based on its findings of the applicant’s parents’ lack of credibility, that it rejected what it saw as “unsupported claims” that Chinese government officials warned the applicant’s parents that they were “right in fearing for the fate of their daughter if returned to China” (CB 238.2).
18)Nor was it able to be satisfied that there was anything untoward about this “visit” by Chinese officials, or that the harm claimed by the applicant’s parents to have occurred during the interview by the Chinese officials, did occur (CB 238.4).
19)It was satisfied that there was not a real chance that the applicant, or her parents, would be denied a passport for any Convention related reason, or that she would be subjected to serious harm amounting to persecution for a Convention reason once she went to China, arising from any knowledge that the applicant, or her parents, had applied for protection visas in Australia, and had been interviewed by Chinese officials in Australia, or for any other reason (CB 239.2).
20)It rejected the applicant’s parents’ claims that the applicant would be subjected to serious harm amounting to persecution for a Convention reason sometime in the future based on assertions (which the Tribunal accepted) that freedom to express political and religious views in China, and the approach to human rights in that country, are considerably different than in Australia (CB 239.4 to CB 240 .4).
21)Having considered all the claims made by the applicant (on her behalf), both individually and collectively, it was satisfied that there was not a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason if she “returns” (goes) to China (CB 240 .8).
The application to the Court was filed on 20 December 2005, and an amended application was filed on 1 May 2006. The amended application appeared to abandon some grounds previously put forward and rather, asserted two particularised grounds:
“Ground 1
1.The Tribunal erred in a manner amounting to jurisdictional error in that:
a.It failed to conduct the hearing contemplated by s 425 of the Migration Act 1958 (“the Act”) relating to the issues arising in relation to the decision under review, and
b.It breached procedural fairness in relation to requirements which were not excluded by s 422B of the Act”
“Ground 2
2.The Tribunal constructively failed to exercise its jurisdiction and was unreasonable in a manner amounting to jurisdictional error in its consideration of the claim that the parents of the applicant had been interviewed by officials from the Public Security Bureau of the People's Republic of China whilst they were detained at the Baxter Immigration Detention Facility.”
At the hearing before me the applicant was represented by
Mr. Archibald and the respondents by Mr. Braham. At the commencement of the hearing:1)The applicant’s mother was appointed as litigation guardian for the purposes of the proceedings before the Court.
2)Leave was granted for the filing of the applicant’s amended application.
3)Submissions were put regarding a Notice to Produce which the applicant had served on the respondents. The Notice was in the following terms:
“1.The documentation described as “other material available to it” in the sentence which reads “The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.” and which sentence appears at page 200 of the Court Book filed by the Respondents in these proceedings (Page 200 of the Court Book being also page 4 of the decision record of the Refugee Review Tribunal signed 25 November 2005 in application for Refugee Review Tribunal reference N05/52119).
2.All directions given by the Principal Member of the Tribunal under s 421 of the Migration Act 1958 as to who was to constitute the Refugee Review Tribunal for the purposes of the review hearing which took place on 5 November 2003 pursuant to the Application for Review received on 7 May 2003 and who was to constitute the Refugee Review Tribunal for the purposes of the Review Hearing which took place on 16 November 2005 and any further directions given under s 422 and/or s 422A of the said Act in relation to the application for review of the decision not to grant the applicant a protection visa”
4)Mr. Braham submitted that, in relation to “1” above, the respondent objected to the wide and unspecified scope of the Notice (as being “too broad”, and as having “no legitimate forensic purpose”) to the extent that it could be referring to any document other than documents relating to the “visit” by Chinese officials when the applicant’s parents were held at the Baxter IDC. There was no objection in so far as it was intended to cause the production of documents relating to this “visit”. But in any event, the respondent had no such documents to produce. Ultimately, Mr. Archibald agreed that there was no point in continuing to press the matter, as on instructions Mr. Braham had submitted that there were no such documents in the possession of the Minister, or the Tribunal, to be produced.
5)In relation to “2” above, after hearing submissions, I gave directions that the respondent should produce any relevant documents in her possession. Mr. Braham produced these documents, but sought that they be treated as “confidential”, and restricted in production to the applicant’s legal representatives. There was no objection to this by Mr. Archibald. Documents were produced, and subsequently tendered by Mr. Archibald on behalf of the applicant and market Applicant’s Exhibit 1 (“AE 1”). Consistent with Mr. Braham's submission, I marked this as a “confidential” exhibit.
6)Mr. Archibald sought to read into evidence two affidavits filed on behalf of the applicant. The first was the affidavit of the applicant’s mother sworn on 27 March 2006. I ultimately admitted the affidavit into evidence, to enable Mr. Archibald to make his submissions, but subject to the requirement that he still needed to establish the relevance of the matters asserted in the affidavit. The second was the affidavit of Sue Archer, made on
17 March 2006, annexing a transcript of the hearing conducted by the Tribunal on 16 November 2005. Mr. Braham raised no objection and that affidavit, and its annexure, was admitted into evidence. Similarly, the affidavit of Michael Chance, an employee of the respondent's solicitors, made on 21 April 2006, was also admitted into evidence. Annexure “C” to that affidavit is a copy of the transcription as provided by Sue Archer, but with amendments made by Mr. Chance. The affidavit indicated that he had listened to the “tapes” from which the transcribing had occurred and had made amendments accordingly.
The applicant’s first ground of complaint is that the Tribunal did not conduct a hearing with the applicant, her parents and adviser as contemplated by s.425 of the Migration Act 1958 (“the Act”). In doing so, it breached procedural fairness requirements and that such a breach was not one which was excluded by operation of s.422B of the Act. With reference to relevant parts of the transcript (“T”) of the hearing that the Tribunal conducted, Mr. Archibald submitted that the Tribunal, properly identified the critical question at T5:
“However, what do you fear will happen to your daughter if she returns to China as she is a third and unregistered child?”
Mr. Archibald submitted that the central claim as to fear of persecution was stated by the applicant father at T5.9:
“…the child would not receive any benefits in China, will not go to school and will receive discrimination from other children, and the adult will receive serious persecution and in serious cases would be sent to jail or to labour camp. For the woman she receive compulsory sterilisation, this is inhuman because if you want to have children again you won't be able to. And also fines.”
However, Mr. Archibald submitted that the Tribunal “heard” (that is at the hearing on 16 November 2005) the claim essentially as it related to the ground of religion instead of pursuing this central issue based on the applicant being unregistered in China. Other than for that part of the transcript (T8 to T9) where the Tribunal referred to the “interrogation” in the Baxter IDC, and for some questions such as “have we covered the points you wanted to put before me” (T11), the entire focus of the Tribunal's hearing was on the claim based on religious belief. Mr. Archibald submitted that the Tribunal’s failure at the hearing to comprehensively deal with the applicant's claims (which he argued went to the issue of the failure to provide a proper hearing as required by s.425) is further reinforced where at T3.1 the Tribunal stated:
“At this hearing I will only raise points on which I would like further clarification or more detailed information and I will not necessarily cover everything you claim in detail.”
Mr. Archibald’s submission was that this was a breach of a procedural fairness requirement, and that this was not a requirement of procedural fairness which was excluded by the operation of s.422B of the Act. He submitted that the Tribunal’s decision was “problematic” as it was “essentially adopting what occurred in the first Tribunal”. He submitted that the Tribunal had a view of what occurred “in the first Tribunal hearing”, and it “was happy with that”. His submission was that the Tribunal was constituted for the purposes of “a particular review”, and that the Tribunal does not have “an independent existence” apart from being constituted for the purposes of a “particular review”. That is, when it is constituted for the purposes of exercising its power.
With reference to the instrument of delegation tendered by the applicant (“AE1”) Mr. Archibald submitted that the Tribunal was constituted pursuant to s.421 of the Act following remittal of the applicant's matter, by consent, from the Full Federal Court. Therefore, the Tribunal was not entitled to rely on the findings of “another” Tribunal, and the failure to properly deal at the hearing with a central claim made by the applicant meant that the Tribunal failed to provide a proper hearing within the meaning of s.425, and denied the applicant procedural fairness.
He submitted that the documents encompassing “AE1” were the instruments of delegation by the Principal Member of the Tribunal (to a particular senior member of the Tribunal on 16 January 2003) of the power to constitute, and reconstitute cases, to members of the Tribunal (pursuant to s.421 and 422 of the Act), and the documents subsequently constituting both Tribunals. On 9 September 2003 the applicant's case was constituted to a particular member (this was the “first” Tribunal), and that following consent orders made by the Full Federal Court on
22 September 2005 the applicant's matter was constituted to the member whose decision is now the subject of review before the Court. Mr. Archibald's submission was that the effect of this was to constitute a different and separate Tribunal from the Tribunal that conducted the earlier hearing. His argument was that as the first Tribunal's decision was set aside by the Full Court, and there was no reconstitution of the Tribunal for the purposes of continuing the particular review, then s.421 of the Act came into operation and there was a “de novo constitution” of the Tribunal for the purposes of the review. He submitted that in accord with the requirements of procedural fairness, that when the Tribunal is “again constituted” under s.421, there is an obligation on the Tribunal to afford procedural fairness in such a way so as to require it to deal with all of the relevant claims made by the applicant.
In relation to the submission that s.422B did not operate to preclude an argument which relied on procedural fairness at common law,
Mr. Archibald referred to the decision of WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 (WAJR”) with reference in particular to paragraphs [57] to [59] of that Judgement. He submitted that as the central issue was not a matter dealt with by s.424A of the Act, in that it was not “information” for the purposes of s.424A, then a failure to conduct a hearing of the kind contemplated by s.425 would amount to a failure to comply with the obligation imposed to invite an applicant to participate in a hearing in such a way that the central issues are addressed. The argument was that in circumstances where the decision of the “first Tribunal” had been “set aside”, the effect of such “setting aside” is that the first decision is deemed to have been “struck from the record”. A such, it was not open to the “second Tribunal” to fail to conduct a hearing of the kind contemplated by s.425, on the basis that the claim in question had been considered by the “first” Tribunal.
Mr. Braham's submission was that even if the Tribunal hearing was considered “in isolation as a de novo hearing” that s.425 was in every respect satisfied. He submitted that the applicant was invited to attend the hearing, her representatives were given an opportunity to say whatever they wanted to say, and that although the Tribunal raised questions which were of interest to it, the applicant's advisers were not constrained in any way from putting what they wished to put. This is consistent with what appears in the transcript of the hearing where the Tribunal gave opportunities for the applicant's parents, and adviser, to put any additional matters that they wished to put to the Tribunal.
Further, Mr. Braham submitted, that even with a “de novo” hearing, it was permissible for the Tribunal to have relied on evidence given at the previous hearing. But in any event, he relied on the submission that the Tribunal throughout was participating and conducting the “same review”.
Sections 421, 422 and 422A provide:
“421Constitution of Refugee Review Tribunal for exercise of powers
(1)For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member.
(2)The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.
422Reconstitution of Refugee Review Tribunal–unavailability of member
(1)If the member who constitutes the Tribunal for the purposes of a particular review:
(a) stops being a member; or
(b)for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.
(2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
(3)In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).
422A Reconstitution of Tribunal for efficient conduct of review
(1) The Principal Member may direct that:
(a)the member constituting the Tribunal for a particular review be removed; and
(b)another member constitute the Tribunal for the purposes of that review;
if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 420(1).
(2)However, the Principal Member must not give such a direction unless:
(a)the Tribunal’s decision on the review has not been recorded in writing or given orally; and
(b) the Principal Member has consulted:
(i) the member constituting the Tribunal; and
(ii) a Senior Member who is not the member constituting the Tribunal; and
(c) either:
(i) the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or
(ii) a period equal to or longer than the period prescribed or the purposes of this subparagraph has elapsed since the Tribunal was constituted.
(3)If a direction under this section is given, the member constituting the Tribunal in accordance with the direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal.”
The issue addressed by Mr. Archibald now is essentially the effect on the conduct of a review before the Tribunal, of orders made by a Court in remitting a matter to the Tribunal. Further, whether such orders then lead to a “different” Tribunal being constituted, (particularly in the context of s.421 of the Act) and as such whether the result is essentially that a “separate review” is to be conducted with the effect that the “second” Tribunal was not entitled to simply rely on what had occurred before the first Tribunal.
This issue (albeit in a context arising from s.424A) was considered by the Full Court in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 (“SZEPZ”), a Judgement handed down after the hearing of the case before me (I note that Mr. Archibald appeared for the appellant in that case). While the ultimate question before the Federal Court in that case was whether the “second” decision made was infected with jurisdictional error because of a failure to comply with s.424A, the Court, in looking at the appellant's argument, said at [37]:
“The appellant contends that, when s 424A refers to the Tribunal giving information, it must be construed as referring to the member by whom the Tribunal is constituted for the purpose of conducting the particular review. He says that, since, following the Consent Orders, a second review was commenced by the Tribunal, constituted by a different member, the information must be given by that member. He argued that it is not sufficient that the information had already been given to the appellant.”
At [39] the Court said:
“In any event, when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.”
In considering the proper construction and application of s.424A the Full Court said at [41] – [42]:
“[41]Thus, the provision contemplates that a particular member who constitutes the Tribunal for a particular review has turned his or her mind to the question of whether particular information would be the reason, or part of the reason, for deciding to affirm the delegate’s decision. If that prerequisite is not satisfied, then there will be jurisdictional error, unless the Tribunal has given the review applicant particulars of the information, has ensured that the review applicant understands why the information is relevant to the review and has invited the applicant to comment on the information.”
“[42]However, the information and invitation must be given by the Tribunal by one of the methods described in s 441A. All of these methods contemplate that the information and invitation can be given by the Registrar or by an officer of the Tribunal or by a person authorised in writing by the Registrar, in addition to a member of the Tribunal. Further, there is nothing in the scheme of Part 7 of the Act to suggest that the steps required by s 424A(1), as explained by s 424A(2), must be taken at any particular time. So long as an applicant has been given information that the member of the Tribunal who is to make the decision considers would the reason, or part of the reason, for affirming the decision under review and so long as the applicant understands why that information is relevant and has been invited to comment on the information, s 424A will be satisfied.”
In dealing with the subject of the claimed information that the appellant said had not been given pursuant to s.424A(1) in that case, the Court stated at [43]:
“Before the Second Decision, the appellant had, in fact, been given particulars of the relevant information, consisting of the response of the High Commission, and was invited to comment on it. That was done by the letter of 9 April 2003. Indeed, as indicated above, the appellant commented on the information. The appellant has not suggested that he did not understand why the information was relevant to the Tribunal’s review of the delegate’s decision. Accordingly, there was no failure to comply with s 424A in relation to the making of the Second Decision. In the light of that conclusion, it is not necessary to determine whether or not the Tribunal was reconstituted under s 422.”
While the operative legislative provision in SZEPZ was s.424A and before the Court now the applicant’s argument relies on an alleged failure to comply with s.425, the real issue is analogous. Namely whether a failure to comply with the provisions of Division 4 of Part 7 of the Act can be made out in circumstances where a Tribunal, acting after a matter had been remitted by orders of a Court for reconsideration, is entitled to rely on what occurred before the Tribunal before the remittal (but clearly after the application for review).
In applying the above to the circumstances of the case before me therefore, even if the “second” Tribunal member was constituted pursuant to s.421 as the applicant argues, it is clear that such constitution refers to “a particular review”, being the review of the decision of the Minister's delegate that related to the applicant. As the Full Court said in SZEPZ, until the Tribunal has made a valid decision on this review application, it has a duty to perform that “particular review”. What turned out to be the invalid decision by the Tribunal, which was the subject of orders remitting the matter to the Tribunal, is no decision at all. But, as the Court said in SZEPZ, it does not follow that all steps and procedures taken in arriving at that decision are themselves invalid. The Tribunal before me therefore still had before it the materials that were attained by the Tribunal as previously constituted. The applicant sought review by the Tribunal on 7 May 2003. While the Tribunal’s decision of 27 February 2004 was found to be invalid (as of 31 August 2005 – the date of the consent orders), what was before the Tribunal at that time (and from 7 May 2003) remained before the Tribunal until the review was complete. This included the report of the hearing conducted by the “first” Tribunal. The “second” Tribunal therefore, having this material before it, was entitled to proceed in the way that it did.
The transcript of the hearing of 16 November 2005 before me reveals that the Tribunal approached that hearing with this in mind. For example, the Tribunal made reference at T1.8 to the application for a protection visa and to the decision of “the delegate of the Minister for Immigration” and said “my job is to conduct this independent review. I am undertaking a new examination of the application and not just the earlier written decision”, it went on to explain at T1.9:
“As part of the process I will be considering all the evidence you have provided including the information you give me today.”
The Tribunal further explained this at T3.1:
“There will be a chance to be able to put other material before me. Now I have carefully read your files. I believe I have a reasonably good idea of your daughter's claims. At this hearing I will only raise points on which I would like further clarification or more detailed information and I will not necessarily cover everything you claim in detail.”
The review initiated on 7 May 2003 was made pursuant to s.414(1) of the Act. The “second” constituted Tribunal completed that review by the making of its decision and was, upon the authority of SZEPZ, entitled to take into account the materials that were attained by the earlier constituted Tribunal. For this reason, it is clear that the Tribunal, as part of its recounting of the applicant's claims and evidence, gave extensive recording to the report of the hearing conducted by the Tribunal (the earlier constituted Tribunal) on 5 November 2003. This report appears in its decision record at CB 203.1 to CB 211.2.
The applicant’s complaint is that the failure by the “second” constituted Tribunal to raise issues at the hearing it conducted with the applicant and her advisers, led to the applicant being denied procedural fairness, and the requirement to provide procedural fairness was not excluded by operation of s.422B of the Act. I note that the application for review was made on 7 May 2003 and s.422B became operational earlier on 4 July 2002. Putting aside the issue of the effect of s.422B for a moment, it is clear that the applicant’s “central claim” (that is, the claim arising from the circumstances of her birth outside the Chinese “one child policy” and her lack of “registration”) was fully discussed at the hearing before the “earlier” constituted Tribunal. The only evidence before the Court of what occurred during this hearing is the report reproduced by the Tribunal in its decision record of 25 November 2005. This report shows that the central issue arising out of the claimed breach of the Chinese one child policy was comprehensively discussed with the applicant's mother and father. On this basis the applicant did have an opportunity of a hearing where the “central claim” was canvassed and the applicant’s representatives were given the opportunity to put her case and to comment. There was no assertion by Mr. Archibald that what occurred at the first hearing constituted any failure to accord procedural fairness or breach of s.425.
The Tribunal also relied in its decision on independent country information which was discussed and put to the applicant's representatives at the first hearing before it. An opportunity was given for comment on this material. As such, even if procedural fairness at general law were to apply, the applicant's representatives would most certainly have been on notice as to the independent information on which the Tribunal sought to rely. If s.422B were to apply as the exhaustive statement of the matters set out in Division 4 of Part 7 of the Act, I note that in any event such information would fall within the exception contained in s.424A(3)(a) from the requirements set out in s.424A(1) (see QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 (“QAAC”) and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 (“NAMW”) ) to provide such information pursuant to s.424A(1).
In all therefore, the applicant's argument that the “second” constituted Tribunal was not entitled to rely on the steps and procedures taken by the “first” constituted Tribunal is not made out. In terms of procedural fairness and any alleged breach, this complaint is also not made out. The application for review was made on 7 May 2003. Section 422B became operational on 4 July 2002. As to its affect see Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61. But even if the principles of procedural fairness at general law applied, on the material before me, those representing the applicant had been given clear notice as to the substance of relevant independent country information upon which the Tribunal relied. As to what was discussed at the “first” hearing relating to the “central” claim arising from the breach of the one child policy the applicant’s parents and advisers, in the circumstances of what is before me, had ample opportunity to make any further submissions (both at the “second” hearing and otherwise in writing) that they may have wished to make. The Tribunal’s obligation is to act fairly and to provide opportunities for the applicant to put forward her claims. In the circumstances, I cannot see that the Tribunal failed in this regard.
Mr. Archibald also sought to rely on WAJR and an alleged failure by the “second” constituted Tribunal to invite comment on conclusions about the evidence put forward by the applicant as leading to a failure of procedural fairness. This submission, to the extent that it related to a complaint of a failure to afford procedural fairness, is dependent on the applicant being able to establish a distinct separation between materials before the “first” constituted Tribunal and the “second”. Given that I have already found, based on the authority of SZEPZ, that the Tribunal was entitled to rely on what had occurred at the hearing by the “first” constituted Tribunal, where this matter had been fully explored by that “first” Tribunal, then this aspect of the complaint is also not made out.
In any event, I accept the respondent’s submission that in the circumstances before me, the situation is clearly distinguishable to that found by French J. in WAJR. His Honour held that the applicant in that case must be given an opportunity to comment before the Tribunal in relation to a finding that he had concocted documents tendered in support of his application. The adverse credibility finding in the case before me related to, in particular, the applicant’s father’s evidence on the religion claim. The material before me shows the Tribunal discussed this issue (at the “second” hearing) and on the material before it, it was open to the Tribunal to form an adverse view of the parents’ credibility (CB 228.7). Findings of fact, including findings on credibility are, of course, within the role of the Tribunal (Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”) at [67]).
That the Tribunal applied this finding, in part, in dealing with what the applicant’s parents said occurred at the Baxter Immigration Detention Centre does not reveal jurisdictional error on the part of the Tribunal. The Tribunal had clearly formed a view as to the parents’ credibility as a result of the parents’ claims relating to religion. While it rejected some of what the parents claimed had occurred at the “visit” by the Chinese officials, “in view of its earlier findings about their credibility” (CB 238.2), this was only a part of its only reasons for doing so. The Tribunal variously rejected the applicant’s claim as it arose from the “visit” because of “the account provided by the applicant’s parents at the second hearing” (CB 238.1). The claims were “unsupported” (CB 238.2) and the applicant’s father had “embellished his claims” (CB 239.4) (that is, the claims made at the second hearing concerning the “Baxter visit”), and was “not a credible witness as a result”. These findings were open to the Tribunal on what was before it. I cannot discern any obligation on the Tribunal pursuant to s.424A(1) to have provided its subsequent adverse conclusions for comment (See SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [65] per Moore J. and [206] per Allsop J. (citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [95] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24])). Further, it is clear that the applicant’s parents (with advisers involved) were given every opportunity to present the claims. Other aspects of this complaint are dealt with under ground 2.
The applicant's second ground of complaint is that the Tribunal failed to exercise its jurisdiction, and further, was unreasonable in a manner amounting to jurisdictional error, in its consideration of the claim by the applicant's parents that they had been interviewed by officials from the Chinese government whilst they were detained by the first respondent at the Baxter IDC. The complaint is based on the assertion that such an interview meant that the applicant would ultimately suffer harm amounting to persecution should she go to China, arising from the adverse view that the Chinese authorities would derive from the fact that the applicant and her parents had applied for protection in Australia.
The applicant complains, and accordingly submits, that:
1)The Tribunal made a finding that it was reasonable to conclude that the purpose of interviewing the family was in order to facilitate the production of a travel document for the applicant for her movement to China (CB 237.9). This finding was unreasonable, given that the applicant, at the time of this interview (through her parents), had no intention of returning to China, and in fact had an application for judicial review of her protection visa decision still pending.
2)The Tribunal's finding at CB 238.2:
“However, from the account provided by the Applicant's parents at the second hearing, and in view of its earlier findings about their credibility, the Tribunal does not accept the unsupported claims…that “The Chinese government officials warned the Applicant's parents that they were right in fearing for the fate of their daughter if returned to China.”
Was unreasonable in light of the evidence provided by the applicant's parents as to the nature of the questions that they were asked by the officials, and the account provided by the parents gave no basis for the Tribunal's findings.
3)Given that there were exceptional and unusual circumstances in the applicant's case (and these are set out in detail at paragraph 47 of the applicant’s written submissions, but generally derive from the interview by the Chinese officials at the Baxter IDC and the claimed threats made by these officials) the Tribunal was required to make further inquiries.
Mr. Archibald submitted firstly that in circumstances where the applicant’s matter was still before the Federal Court, it was inappropriate for the Minister's Department to have allowed Chinese officials to have interviewed/”interrogated” the applicant’s parents whilst they were in the control of the Minister's Department. Mr. Archibald submitted that it was inappropriate for the visit to have been facilitated in light of the fact that the applicant's case was still before the Federal Court at that time (25 May 2005). This was particularly in light of the Tribunal's finding (CB 237.8) that it was satisfied that it was reasonable to conclude that the Chinese authorities “are now aware” of the applicant’s birth in Australia and that the purpose of interviewing the family “was in order to be able to facilitate the issue of a travel document to the applicant for her movement to China”.
The issue for the Court now is whether the Tribunal's decision is infected with jurisdictional error. In this regard, the question is whether a claim made by the applicant has been properly dealt with according to law. The visit by the Chinese authorities is relevant to this issue insofar as it creates the circumstance out of which the subsequent claim of a well founded fear of persecution was then put forward by the applicant to the Tribunal – that knowledge of the family’s applications for protection visas in Australia would in itself lead to persecution if the applicant were to go to China. However, whether it was appropriate for the first respondent to have allowed such a visit at that time, given that the applicant’s matter was still before the Federal Court, does not of itself give rise to any relevant ground of review of the Tribunal's decision. Simply, it is what the Tribunal has done that is relevant, not the actions of the Minister or her employees. I note clearly also, that there was no evidence put before me as to the exact timing of the appeal to the Federal Court from the earlier decision by the Federal Magistrates Court in upholding the “earlier” Tribunal decision. It may well be that the visit occurred between these two events.
I cannot leave this point however, without making the following observations. I accept, as Mr. Braham submitted, that having been unsuccessful before the Tribunal, and unsuccessful following subsequent judicial review in the Federal Magistrates Court, there would come a point where the Minister’s employees would seek to make arrangements to obtain a travel document for the applicant. Having been found not to be a refugee by the Tribunal, and no legal error having been found in the Tribunal's decision, it would be appropriate for the Minister in those circumstances to facilitate the obtaining of a travel document. But I do not agree with Mr. Braham's submission that such action was appropriate if the appeal to the Full Federal Court was on foot at that time. I reject his submission that, in essence, “in the ordinary course”, the appeal to the Full Federal Court goes “the same way” as the previous applications. In my view, such an approach is highly presumptuous as, obviously, evidenced by what happened in the precise circumstances of the case before me. It would be inconsistent of the Minister to arrange the obtaining of travel documents for an applicant while about to agree that the Tribunal's decision is infected with jurisdictional error.
In any event, the focus of the Court in the proceedings now must properly be on what the Tribunal has done. The applicants second ground of complaint derives from the Tribunal's finding at CB 237.9:
“However, the Tribunal accepts that following the interview of the Applicant’s parents in Baxter on 25 May 2005 the Chinese authorities are now aware of the applicant’s birth in Australia and is satisfied that from the questions they put to the Applicant’s parents that it is reasonable to conclude that the purpose of interviewing the family was in order to be able to facilitate the issue of a travel document to the Applicant for her movement to China.”
That the applicant’s parents were interviewed by Chinese officials in the Baxter IDC on 25 May 2005, is not an issue in contention between the parties. Mr. Archibald's submission was that the applicant’s case contained certain “exceptional” and “unusual” circumstances as set out at paragraph 47 of his written submissions. The complaint that the Tribunal’s finding was unreasonable is said to be found in the way the Tribunal dealt with this “extraordinarily serious claim”.
Mr. Archibald referred to:
1)CB 150 to CB 170, where written submissions dated 24 October 2005 from the applicant’s then representatives to the Tribunal are reproduced. His submission was that at this point the applicant’s representatives, on her behalf, raised a third ground before the Tribunal in addition to the grounds based on the one child policy, and on religion. This ground was that the applicant would be persecuted upon going to China because she had applied for asylum in Australia and/or because she was the daughter of parents who had done so (CB 167.9). The claim was that the fear was heightened in circumstances where the applicant’s parents were “interrogated” by Chinese government officials who attended the Baxter Immigration Detention Centre (CB 168.1) and further, at CB 168.3, that:
“The Chinese government officials warned the Applicants parents that they were right in fearing for the fate of their daughter if returned to China.”
2)The claim was that further:
“The applicant may have come to the attention of Chinese government spies in Australia and thus may be persecuted on return to China.” (CB 170.8)
3)In the transcript of the hearing, at T8.8, the Tribunal itself referred to this claim in the following terms (the parts appearing in brackets are the amendments to the transcript made in the annexure to the affidavit of Michael Chance):
“You claim that your daughter will be persecuted because you have applied for asylum and she is the daughter of parents who applied for asylum and your fear is heightened by the recent interrogation by the (delete “the”) Chinese Government officials who attended the (delete “the”) Baxter IDF, and you were quizzed about your own and the applicant’s cases, processed (process), and the (delete “the”) specifics of the (their) claims. Exactly when did the PRC authorities interview you in Baxter detention centre?”
4)The transcript reveals that the applicant's father stated to the Tribunal (see T9.9 to T10.1) that they were threatened (it was not clear who actually made the threat) and that the applicant's father was ultimately apprehensive that there was a direct threat from the Chinese officials:
“They said that now with this daughter you have violated the one child policy, the family planning policy. When you return you definitely be punished”
5)That the applicant's solicitors made further submissions on behalf of the applicant after the hearing with the Tribunal, and this is reproduced at CB 174 to CB 180. At CB 178.5 the submissions refer to the following:
“The Applicant’s parents claim that while they were detained at Baxter IDF they were interrogated by Chinese government officials.”
The submissions requested that if the Tribunal did not accept this claim, that the Tribunal seek clarification from the first respondent’s Department and provide a copy of the response to the applicant's solicitors. The submissions make further reference to information obtained previously from the Tribunal that the Chinese government officials who “interrogated” the applicant’s parents were from the Chinese Ministry of Public Security.
6)That the claim was ultimately put at CB 180.5:
“Clearly, by allowing the Applicant’s parents to be interrogated by MPS officers DIMIA has increased the chance of the Applicant's persecution on return to China.
Some may argue that the Chinese government officials were merely tasked with confirming identity. However, in there does not seem to have ever been doubt about the Applicant’s parents’ identity. In any event, the independent sources noted above indicate that the MPS does not always do what it is tasked to do and (in the words of Amnesty international):
there is a big gap between theory and practice”.
Mr. Archibald’s submission was that as the respondent has not produced any other material, and there is nothing to indicate that there was any other material before the Tribunal to be produced (other than what had been relevantly referred to), that the Tribunal’s finding about the purpose of “the interrogation”, being to facilitate the issue of a travel document, seems “to be an erroneous unreasonable conclusion and not founded on any evidence”. In essence therefore, the complaint appears to be founded on the following:
1)That the Tribunal's finding was unreasonable in light of the evidence from the applicant’s parents as to the nature of the questions which they were asked by the officials. Further, it was unreasonable because at the time of the interview the applicant (through her parents) had no intention of returning to China and this is clearly demonstrated as she had a “pending application for judicial review of the protection visa decision”.
2)That the Tribunal's finding (at CB 237.9) was based on the Tribunal's rejection of the applicant’s parents’ credibility (in relation to the claims relating to religion) and that the Tribunal was in error in applying these earlier findings to this issue.
3)That the Tribunal failed to interview the applicant’s mother in relation to this issue.
4)That the Tribunal was in error in failing to make any inquiries which it should have made given the “exceptional and unusual circumstances”. These inquiries, in the applicant’s submission, should have been made to the Minister's Department, in order to determine exactly what happened at the “interrogation”.
In reply, Mr. Braham’s submission was that even if it was correct that the Tribunal made a factual finding that was wrong, and unsupported by the evidence, that would not be a successful ground of review because it comes within the province of the Tribunal to so act.
In any event, he sought to rely on the submission that there was evidence before the Tribunal that grounds its findings. He referred to the Tribunal's account of what occurred at the hearing:
1)At CB 222.3:
“The Tribunal asked the Applicant’s parents what the Chinese officials asked them about, particularly in relation to the Applicant, and the Applicant’s father replied they asked about the Applicant's application for refugee status, when she was born, when they went to Baxter, and also said that in China this would absolutely not be allowed. He claims they taped the conversation and wanted to know about his and the Applicant’s background and their address in Shanghai.”
2)At CB 222.4 it put to the applicant’s parents that the adviser had submitted:
“The Chinese government officials warned the Applicant’s parents that they were right in fearing for the fate of their daughter if returned to China.”
3)It asked, having ascertained that they were never interviewed by Chinese authorities on any other occasion, as to what exactly the Chinese officials said to them when they were interviewed on this occasion.
4)The Tribunal records at CB 222.5:
“The father claimed that they asked them their address in Shanghai, whether they came to Australia by plane or ship, whether or not they had applied for refugee status before, and about the Applicant’s refugee status application.”
Mr. Braham also submitted that the transcript of the hearing supports the Tribunal’s account. In particular he referred to the transcript at T9.5:
“Tribunal member: What did the Chinese officials say to you about this when they interviewed you?
Applicant’s father: They first asked my address in Shanghai, when I left the country, whether I took ship or aeroplane, and asked whether we apply for refugee before or not, and asked me about my daughter's application for refugee status. When they were asking questions they have a form in front of them which has our photograph on them. So we felt stress and panic because I know that when they discover we have applied to refugee status outside of China then we will face persecution when we go back and it cause us panic.”
Mr. Braham’s submission was that the transcript of the hearing provided by the applicant now to the Court reveals from about T9.2 to T10.4 that the Tribunal specifically asked the applicant's father about the “interview” with the Chinese officials, pressed as to what was said at this interview, and particularly pressed as to what was said in the context of the submission made by the applicant’s adviser (I also note further that the Tribunal also pursued another aspect of the adviser’s submission - that the applicant and her parents had come to the attention of “Chinese government spies” in Australia).
The Tribunal's decision record (at CB 237.6 to CB 239.4) reveals that the Tribunal well understood the applicant’s claim as put by her adviser and her father to the Tribunal, relating to what is said to have arisen at the “interview” at the Baxter IDC. Specifically, in relation to the adviser’s submission, as set out at CB 178.5, this sought further investigation by the Tribunal. But clearly the investigation was requested in the event that the Tribunal did not accept that the applicant’s parents had been interviewed (“interrogated”) by Chinese government officials while they were detained at Baxter. The Tribunal clearly accepted this claim, which made the subsequent request for investigation unnecessary.
I accept Mr. Braham’s submission that, irrespective of the issue of whether a ground of review can arise in circumstances where a Tribunal is engaged in making a finding of fact, in the circumstances of what is before the Court now, including the transcript of the hearing, the finding by the Tribunal (that it was reasonable to conclude that the purpose of interviewing the family was in order to facilitate issue of a travel document to the applicant) was open to the Tribunal to make on the material before it. The Tribunal clearly accepted that the interview had taken place, and accepted that the Chinese authorities had become aware of the applicant's birth in Australia.
The applicant’s complaint now, that there were “exceptional and unusual circumstances” in the case (and these are set out a paragraph 47 of the applicant’s written submissions) that made the Tribunal’s finding unreasonable, is not made out for the reasons set out above. These circumstances, to the extent that they were relevant to its consideration, were before the Tribunal. It accepted some of the circumstances, for example the “visit”. It took a different view of the other circumstances to that which the applicant’s parents would have preferred. But it did so in the context of other material that was before it. Even if another Tribunal may have found differently, this does not make this Tribunal’s finding unreasonable.
I should also note that if the complaint also implies that the Tribunal acted irrationally or illogically (putting aside the unclear state of authorities on whether this would be available as a ground of review, or even the (probably rare) circumstances in which it may be available), I cannot see on what is before me that the Tribunal acted in an irrational or illogical way.
Also the complaint that the finding was further unreasonable in light of the parents’ evidence is, in the circumstances of what is now before the Court, and with reference to what is set out above, in my view, a complaint that the Tribunal did not fully accept the parents’ (essentially the father’s) account of what occurred. The Tribunal, of course, does not have to. It is clear in this case that it did not, and it gave reasons for so doing which do not reveal unreasonableness, even though clearly another Tribunal may have come to a different conclusion.
To the extent that Mr. Archibald seeks to submit that there was error in the Tribunal's failure to “interview the applicant’s mother”, then the transcript of the hearing clearly reveals that the applicant’s mother (and father) were both before the Tribunal at the hearing held on 16 November 2005, and were both sworn to give evidence (T1.7). While it is clear that in the parts of the transcript that refer to what occurred in Baxter IDC the father's evidence predominates, it is also clear that during the course of the hearing the applicant’s mother did intervene with her own comments and was given the opportunity by the Tribunal to make these comments. The applicant's mother was clearly in the hearing room for most of the hearing, apart from when she was required to attend to the infant applicant’s needs (T13.7 to T14.2). Given that the applicant’s mother was present at the hearing during the discussion about what occurred at the Baxter IDC, heard the questions asked by the Tribunal, heard the answers given by the father and intervened on other occasions, it was clearly open to her if she had anything to add, or did not agree with what her husband was putting to the Tribunal, to have put whatever she wanted to put. I cannot see that there was any failure, on the part of the Tribunal in the sense claimed by Mr. Archibald now, to interview the applicant’s mother. Nor was any such complaint made by the mother (or the father) at the time. Nor was any such complaint made by the applicant’s adviser in any post hearing submission, in circumstances where written submissions were made after the hearing.
The applicant also complains that the Tribunal was in error in applying its “earlier” credibility findings to the findings about what occurred at Baxter IDC, and about that part of the Tribunal's decision at CB 238.1:
“However, from the account provided by the Applicant’s parents at the second hearing, and in view of its earlier findings about their credibility, the Tribunal does not accept the unsupported claims contained in the adviser’s submission of 24 October 2005 that “The Chinese government officials warned the Applicant’s parents that they were right in fearing for the fate of their daughter if returned to China”, and notwithstanding the press reports about such visits provided by the adviser, the Tribunal has not been able to satisfy itself that there was anything untoward about this visit by a Chinese official to their nationals held in immigration detention in another country which of necessity had to take place in arrangement with the Department.”
To the extent that the complaint is that the Tribunal should have sought to obtain the tape recording of the interview with the Chinese officials, because this may have assisted in consideration of the case by the Tribunal, this claim also does not reveal error in what the Tribunal has done. Clearly, the Tribunal gave the applicant’s parents every opportunity at the hearing. Whether it may or may not have been of assistance to the Tribunal is, in this context, not a relevant consideration. The obligation on the Tribunal in this regard is to have given the applicant (her parents and advisers) the opportunity to put forward what they claimed occurred at the interview with the Chinese officials, to the extent that this may have supported their claim that another aspect of the fear of persecution arose as a result of the interview. The Tribunal did provide that opportunity at the hearing it conducted. Further, it clearly took into account submissions made by the adviser after the hearing. Mr. Archibald, in written submissions, invites the Court to find that there was information readily available to the Tribunal which might have assisted in the consideration of the case by the Tribunal. That it should have, for example, obtained tapes of the “interview”. In light of the response to the applicant’s Notice to Produce, accepted now by Mr. Archibald, such a finding could not in any event be made. This is of course irrespective of whether there was any such obligation on the Tribunal in the first place, given the circumstances as presented by the applicant’s parents and advisers, which were all dealt with by the Tribunal, albeit not to the parents’ liking.
Another aspect of this complaint is that it was not available to the Tribunal to reject the credit-worthiness of the applicant’s parents, and in particular to use these findings about their lack of credibility, in rejecting the claim submitted in the applicant’s adviser’s submission. The specific claim was that Chinese government officials warned the applicant’s parents that they were right in fearing for the fate of their daughter. In rejecting this aspect of the claim, it should be noted, again, that the Tribunal gave the applicant’s parents, and adviser, every opportunity to provide detail in support of this claim. Mr. Archibald's position appeared to be that the earlier findings relating to credibility were not findings of dishonesty, and were not of such a comprehensive nature that the applicant’s credibility had been “comprehensively damaged” such as to entitle the Tribunal to not have regard to purportedly corroborating evidence in dismissing the claim. His submission was that the finding of credibility (as it related to the parents) related to the applicant’s claim based on religion and that, in particular, the applicant’s parents at the hearing (T6) both claimed that they were Christians and that the applicant would suffer harm on going to China because she would be brought up in the same religion.
I did not understand Mr. Archibald to be taking issue with the Tribunal’s credibility findings in relation to the claims relating to religion. But indeed if this was part of the complaint then clearly on the material before me, it was open to the Tribunal to make the findings that it did in relation to the applicant’s parents’ credibility. The Tribunal clearly explored the issue of religion with the applicant’s parents at the “second” hearing that was conducted with them. It found that the applicant’s parents were not credible witnesses (CB 228.7). In this the Tribunal specifically relied on what the applicant’s parents themselves put to it, and it was not able to satisfy itself that “they are genuine in their faith”, and have only “become involved in some religious activities over the last 12 months in order to strengthen the applicant’s claims to a protection visa” (CB 229.7).
I understand Mr. Archibald’s submission to be that it was not open to the Tribunal to reject, in particular, the applicant father's statements, as to what he said about being warned by the Chinese government officials on the basis of the earlier finding on credibility because this finding arose out of the claim relating to religion. As I have already set out in relation to that aspect of the complaint in ground 1 above, that arose out of the same circumstances, it is, in my view, on a plain reading of the Tribunal's decision, not accurate to say that the Tribunal rejected the applicant’s claims about what occurred at the interview with the Chinese authorities based solely on the “earlier” adverse finding in relation to the parents’ credibility when dealing with the claim of religion. As set out above the Tribunal rejected the claim as it arose from the Baxter “visit” based on a variety of factors. The Tribunal, in my view, was entitled to make findings on the applicant’s credibility and this is consistent with the “function of the primary decision maker par excellence” per McHugh J. in Durairajasingham at [67]. It was open to the Tribunal to reject some of what the applicant’s parents said occurred at the hearing with the Chinese officials, and also open to the Tribunal to take into account its earlier view of their credibility. I do not see the Tribunal's decision in this regard as being of that type as contemplated in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 where a finding on credibility had so poisoned the well that the Tribunal rejected corroborating evidence in light of a comprehensive finding about the credit-worthiness of the applicant. This is not what this Tribunal did in this case in dealing with the Baxter “visit”. While the “earlier” credibility finding was given some weight, the Tribunal rejected that the Baxter “visit” gave rise to a well founded fear for reasons arising from its consideration of the circumstances as put by the parents (and the advisers).
In all therefore, I agree with the respondent that the Tribunal's findings in relation to what was said regarding the interview with the Chinese authorities were open to the Tribunal on the material before it. No error by way of any unreasonableness, or failure to make inquiries, or unreasonable application of an “earlier” adverse credibility finding, is revealed in what the Tribunal has done.
The applicant’s grounds of complaint are not made out. The application is accordingly dismissed.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 15 August 2006
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