SZJAO v Minister for Immigration & Anor

[2007] FMCA 1102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJAO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1102

MIGRATION – Refugees – application for protection visa – member of Shouters denomination – failure to determine right question – well-founded fear of persecution – real chance of persecution test - religion – failure to attend Tribunal hearing – inadequacy of information afforded to the Tribunal –  whether Tribunal’s lack of satisfaction based on uncertainty – no uncertainty – no evidence balance of probabilities test applied – application dismissed.

Federal Court of Australia Act, 1976 (Cth), s.25(1A)
Migration Act, 1958 (Cth), ss.36, 36(2), 65(1), 91X(1) and (2),  and 476

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Applicants A233/2003 v Refugee Review Tribunal [2004] FCAFC 296
Minister for Immigration & Multicultural Affairs v Eshutu and Anor (1999) 197 CLR 611; [1999] HCA 216
Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 22; [1999] FCR 719
Minister for Immigration and Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 434; [2005] FCAFC 119
N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21; [2002] FCAFC 94
SZDTZ v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2005] FMCA 1392
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195

Applicant: SZJAO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1907 OF 2006

Judgment of: Lucev FM

Hearing date: 13 April 2007

Date of Last Submission: 13 April 2007

Delivered at: Perth

Delivered on: 20 July 2007

REPRESENTATION

Counsel for the Applicant: Mr H N H Christie

Solicitors for the Applicant: Michell Sillar McPhee

Counsel for the Respondents: Mr P R Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the name of the First Respondent be amended to read “Minister for Immigration & Citizenship”.

2. That the application be dismissed.

3. The Applicant pay the Respondents’ costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

SYG1907 of 2006

SZJAO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The original application in this matter was made in the Sydney Registry of the Court on 10 July 2006. 

2. By order of Federal Magistrate Lloyd-Jones on 19 October 2006 the matter was transferred to the Perth Registry of the Court.

3. Pursuant to s.91X(1) and (2) of the Migration Act, 1958 (Cth) (“Migration Act”), the Applicant’s name is not published in these Reasons for Judgment, and an alphabetical pseudonym has been attributed to him, in accordance with the Court’s normal practice for protection visa applicants.

4. The Applicant filed an Affidavit with the original application setting out grounds for review and attaching a copy of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 13 June 2006 (“Tribunal Decision”).

5. On 4 April 2007 the Applicant filed an amended application for prerogative relief under s.476 of the Migration Act.  When the matter came before the Court for hearing on 13 April 2007 leave to amend the application in terms of the amended application filed on 4 April 2007 was sought, not objected to, and granted.[1]

   [1] Transcript, p.2.

6. The grounds for the application as amended are as follows:

   “3. The Second Respondent’s decision made on 22 May 2006 was made without jurisdiction and was not authorised by the Migration Act and is accordingly void and of no effect.

   a)The Second Respondent failed to determine the question that it was required to determine, namely whether the Applicant had a well founded fear of persecution in the foreseeable future, if returned to the PRC.  Rather the Second Respondent considered that the answer to this question followed automatically from its lack of satisfaction as to the Applicant’s claims.

   b)In circumstances where the Country Information relied on by the Second Respondent was consistent with the Applicant’s claims both of the widespread existence of underground or unrecognised Protestant churches and that there was harassment, interrogation, detention and physical abuse of their leaders and where the Second Respondent’s lack of satisfaction stemmed from lack of detail in those claims and the Applicant’s failure to respond to the invitation to attend the hearing, rather than on a positive rejection of those claims, it was essential for the Second Respondent to indulge in reasonable speculation as to what might occur to the Applicant if returned to the PRC and to ask itself the further question “What if I a wrong and the Applicant’s claims are in fact true – is he then at risk of persecution?  Is such possibility sufficiently likely to amount to a real chance of persecution?”

   c)In reaching its decision that the Applicant was not a refugee, the Second Respondent failed to apply the correct standard of proof as to its satisfaction in this regard.  In determining that it was not satisfied as to the truth of the Applicant’s claims to be active Christian or as to his claims of the steps taken against him by the Chinese authorities, which lack of satisfaction was treated as determinative of the Application, the Second Respondent determined the Applicant’s claims to be a refugee on the basis of balance of probabilities, rather than whether there was a real chance of persecution.” [2]

   (Transcribed from original without amendment).

Background to the application

[2] Application, para 3.

Protection visa application

1. On 24 January 2006 the Applicant applied for a Protection Class (XA) visa (“Protection Visa Application”).[3]

   [3] Exhibit 1, Case Book, pp.1-35 (“CB”).

2. The Applicant was aged 35 at the time he made the Protection Visa Application, and a Mandarin speaking citizen of the People’s Republic of China (“China”).[4]

   [4] CB 13.

3. A statement in support of the Protection Visa Application sets out the Applicant’s basis for the Protection Visa Application.[5] In the Statement of Support the Applicant alleges:

   [5] CB 27-28 (“Statement in Support”).

   a)that he is a “pious Christian … a key member of an underground church [in his village] … [in] one of the influential branches of Shouters Denomination established in China”;[6]

   b)from 1992 to February 1999 the Applicant worked as a construction worker, during which time he met “OW”,[7] a group leader of the underground church who organised Bible study group for new members of the underground church;[8]

   c)from February 1998 to November 2000 the Applicant regularly joined religious gatherings of OW’s Bible study group “almost on every weekend”, and accepted religious training provided by OW, as well as assisting to distribute religious promotional material in the local province;[9]

   d)from December 2000 the Applicant worked at different construction sites where he “actively spread gospel” amongst the workers, and from March 2003 organised his own Bible study group which grew from 4 to 30 members;[10]

   e)the Applicant’s Bible study group came to the attention of local government officials when workers distributed materials to nearby residents with the consequence that on 27 August 2004 while the Applicant and OW were organising a Bible study group in the builder’s accommodation shed, the police broke in and “denounced” the “illegal religious gathering” and took the Applicant and OW to the local Public Security Bureau (“PSB”);[11]

   f)the Applicant was detained, interrogated and physically mistreated between 27 August 2004 and his release on 10 September 2004, his release being a consequence of there being no evidence found to “show [his] direct relationship with the underground church”;[12]

   g)from December 2004 to May 2005 the Applicant undertook major tasks for the underground church including the delivery of religious materials to his local and a neighbouring province, the making of arrangements for presentations by preachers, and the enhancing of the underground church’s communication network;[13]

   h)on 10 May 2005 the Applicant was phoned and told that the PSB had raided his home “because I was one of the most important members of the underground organizaton”, and that the PSB had found Bibles and religious materials at his home, and he “was immediately in very dangerous situation”;[14] and

   i)OW used his “secret contact” to arrange for the Applicant to escape China “as soon as possible” which resulted in the Applicant leaving China on 25 August 2005.[15]

   [6] CB 27.  The Shouters is the name given in China to the followers of Li Chang-Shou.  In Taiwan in the late 1960’s Li developed a method of prayer reading whereby scripture verses were shouted out loud and the congregation responded.  Li took the practice to the United States of America when founding his United States Church headquarters in Anaheim in California.  Shouting the scriptures and calling the name of the Lord is apparently seen as a way to release the spirit otherwise thought to often be imprisoned within the body of the natural person: see Li Shixiong and Xiqiu (Bob) Fu (Eds), “Religion and National Security in China: Secret documents from China’s security sector”, 11 February, 2002, A pseudonym has been attributed to ensure the Applicant’s identity is not inadvertently revealed.

   [8] CB 27.

   [9] CB 27.

   [10] CB 27.

   [11] CB 27-28.

   [12] CB 28.

   [13] CB 28.

   [14] CB 28.

   [15] CB 28.

4. The Applicant already had a valid Chinese passport issued on

   
   

   1 August 2002.[16]

   [16] CB 29.

Refusal of protection visa application by delegate

1. The Delegate of the First Respondent made a decision on the Protection Visa Application on 2 March 2006.[17]  The Delegate decided that she was not satisfied that the Applicant was a person to whom Australia owed protection obligations under s.36 of the Migration Act.[18]

   [17] CB 40-47 (“Delegate’s Decision”).

   [18] CB 47.

Application for review of delegate’s decision and proceedings before the Tribunal

1. On 4 April 2006 the Applicant applied to the Tribunal for Review of the Delegate’s Decision to refuse the grant of a Protection Visa.[19]  

   [19] CB 48-51.

2. On 19 April 2006 the Applicant was invited to the Tribunal’s hearing of the Review Application on 19 May 2006.[20]  The Tribunal’s letter specifically said:

   [20] CB 54-55. 

   “The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

   …

   We now invite you … to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.” [21]

   [21] CB 54.

3. The Applicant was also invited to the handing down of the Tribunal Decision on 13 June 2006.[22]  

   [22] CB 61-62.

Tribunal decision

1. The Tribunal Decision[23] begins by noting that the 19 April 2006 invitation to the Applicant to attend the hearing, and the failure of the Applicant to attend the hearing on 19 May 2006 and give evidence or present arguments.[24]  

   [23] CB 67-74.

   [24] CB 67.

2. The Tribunal sets out the relevant law: in particular, ss 36(2) and 65(1) of the Migration Act, and the meaning of “refugee” and the four key elements to the relevant Convention definition of “refugee”.[25]

   [25] CB 67-69.

3. The Tribunal sets out the Applicant’s claims and the evidence, noting in particular the claims made by the Applicant in the Statement of Support.[26]  The Tribunal found that the claims must be assessed against the Applicant’s country of nationality, namely, China.[27]  

   [26] CB 69-70.

   [27] CB 70.

4. The Tribunal also found that it had discharged its obligation to provide the Applicant with the opportunity to be heard, and that the Applicant had “effectively declined that opportunity”.[28]  The Tribunal turned to the question of whether the Applicant “had a well founded fear of persecution for a Convention reason”, saying that that question required:

   a)assessment of the Applicant’s claims; and

   b)determination of whether the Applicant’s claims are “credible and plausible” in light of the independent country information.[29]

   [28] CB 70.  No procedural fairness/natural justice ground was raised by the Applicant’s grounds for review: in fact, it was expressly disavowed by the Respondent’s Counsel – “We’re not raising any claim of breach of natural justice in this matter”: Transcript, p.5.

   [29] CB 70.

5. The Tribunal then referred to the US State Department Report 2004 (“State Department Report”), and only that, as the independent country information, accepts the State Department Report, and says that China’s “Constitution provides for religious freedom but that the Government respect for religious freedom remained poor”.[30]

   [30] CB 70.

6. The Tribunal then sets out a very lengthy extract from the State Department Report.[31]  However, the Tribunal itself says nothing of the State Department Report other than the sentence set out above.[32] 

   [31] CB 70-73. The extract takes up the next three pages of the Tribunal Decision, which is only seven and a half pages long.

   [32] See para 19 above.

7. The Court however notes that the extract from the State Department Report contains the following:

   a)that the “Constitution provides for freedom of religious belief and the freedom not to believe; however, the Government sought to restrict religious practice to government-sanctioned organizations and registered places of worship and to control the growth and scope of the activity of the religious groups”;[33]  

   b)“Overall, government respect for religious freedom remain poor, although the extent of religious freedom varied widely within the country.  Freedom to participate in officially sanctioned religious activity increased in many areas of the country, but crackdowns against unregistered groups, including underground Protestant and Catholic groups … continued and worsened in some locations”;[34]  

   c)“Local authorities’ handling of unregistered religious groups, particularly Protestant “house churches,” varied widely.  In certain regions, Government supervision of religious activity was minimal, and registered and unregistered Protestant and Catholic churches existed openly side-by-side and were treated similarly by the authorities …  In other areas, house church meetings of more than a handful of family members and friends were strictly proscribed”;[35]  and

   d)“Leaders of unauthorised groups were sometimes the targets of harassment, interrogation, detention and physical abuse.  Police closed scores of “underground” … Protestant “house churches,” including many with significant memberships, properties, financial resources, and networks.  Authorities particularly targeted unofficial religious groups in locations where there were rapidly growing numbers of unregistered churches or in places of long-seated conflict between official and unofficial churches, such as [the Report then sets out denominational and geographic targets, the former including “underground Protestant groups” generally, but the latter not including the Applicant’s village or province].”[36]

   [33] CB 70.

   [34] CB 70 (emphasis added).

   [35] CB 71.

   [36] CB 71.

8. It ought be noted that the Tribunal’s one sentence “summary” of the State Department Report set out above,[37] whilst not inaccurate, is no more than a combination of parts of the first two sentences quoted from the State Department Report, and a proper summary or more accurate account of the State Department Report might have included reference to other matters that the Court has set out above.

   [37] In para 19 above.

9. The Tribunal then again notes the failure of the Applicant to provide further information in support of his claims; which thereby deprived the Tribunal of the “opportunity to explore relevant aspects of his claims with him”.[38]  The Tribunal then says as follows:

   “The applicant’s claims are lacking in detail.  Without further information from the applicant I am not satisfied that the applicant joined religious gatherings of a Bible Study Group or that he was involved in distributing religious materials or that he was detained by the police or subjected to interrogation and physical mistreatment.  Without further information from the applicant I am not satisfied the applicant was involved in various religious activities around two named Provinces or that on 10 May 2005 his house was raided by the PSB and they found some religious materials.

   It follows that I do not accept the applicant fled China fearing harm from the Chinese authorities for his religion.  I am unable to be satisfied that the applicant has a well founded fear of persecution for reasons of his religion.”[39]  

   [38] CB 73. And, see footnote 28 above.

   [39] CB 73.

10. By reason of the Tribunal not being satisfied that the Applicant was a person to whom Australia had protection obligations the Tribunal affirmed the decision not to grant a protection visa.[40]  

    [40] CB 74.

Grounds for review of application

1. The grounds for the review of the application are set out in subparas (a) – (c) of para 3 of the amended application set out above.[41]  

   [41] See para 6 above.

Ground (a)

1. This ground asserts that the Tribunal failed to determine the question that it had to determine, or failed to determine the right question[42] which the Applicant says was “the ultimate question”[43] that being whether the Applicant had a well founded fear of persecution by reason of his religion.

   [42] Applicant’s Submissions, para 15.

   [43] Applicant’s Submissions, para 15.

2. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors[44] the High Court considered the effect of changes to the then legislative and regulatory scheme by reason of which a previous raw determination of refugee status was replaced with a requirement that the decision maker be “satisfied” of refugee status before a determination was made.[45]  There it was said that:

   “It is enough to indicate here that a decision which determines that “refugee status” exists differs in nature and quality from one recording the satisfaction of the decision-maker that this is the case.”[46]

   [44] (1996) 185 CLR 259 (“Wu Shan Liang”)

   [45] Wu Shan Liang at 263-264 per Brennan CJ, Toohey, McHugh and Gummow JJ.

   [46] Wu Shan Liang at 264 per Brennan CJ, Toohey, McHugh and Gummow JJ.

3. The majority in Wu Shan Liang discussed the “true nature of the Minister’s decision-making function”, and said as follows:

   “This is, that if the Minister is satisfied that a person has a genuine fear founded upon a real risk of persecution, then the Minister may determine in writing that the person is a refugee.  A condition of determination is the Minister’s satisfaction.  Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee.  Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution.”[47]

   [47] Wu Shan Liang at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ. See also Minister for Immigration and Multicultural Affairs v Eshutu and Anor (1999) 197 CLR 611 at 650 – 651 per Gummow J; [1999] HCA 21 at paras 128, 130 & 131 per Gummow J.

4. In the Court’s view the Applicant has misstated the question that the Tribunal is required to determine.  The question, ultimately, for the Tribunal, was one of satisfaction: namely, whether it was satisfied that the Applicant had a well founded fear of persecution for a Convention reason.

1. The Tribunal did consider the ultimate question as to whether it was so satisfied.[48]  It did so in a proper form, having had regard to:

   a)the prescribed criteria;

   b)ss.36(2) and 65(1) of the Migration Act;

   c)the definition of “refugee”; and

   d)that element of the definition of “refugee” as to whether there was a well founded fear based on a “real chance” of persecution for a Convention reason,

   and concluded, on the basis of the information before it, that it was not so satisfied.[49]

   [48] CB 73-74.

   [49] CB 67-70 and 73-74.

2. Therefore, ground (a) fails because the Tribunal did consider the right question.

Ground (b)

1. Ground (b) is the ground that the Applicant “essentially” relies upon.[50] 

   [50] Transcript, p.5.

2. Ground (b) amounts to this: that the Tribunal’s lack of satisfaction on the basis of a lack of information constituted uncertainty on its part, and being uncertain in those circumstances, it had an obligation to consider the alternative possibility that the Applicant’s claims that there was a real risk of future persecution were correct.[51] 

   [51] Applicant’s submissions paras 16-26; Transcript, pp. 5-8.  The Applicant submitted that the Tribunal had to ask itself the question “What if I am wrong?”  However, as the Federal Court said in Minister for Immigration and Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 220 at 240 per Sackville J; [1999] FCA 719 at para 63 (“Rajalingam”), it is more accurate to discuss the relevant requirement as an aspect of the obligation to apply correctly principles for determining whether an Applicant has a well founded fear of persecution for a Convention reason.  See also Rajalingam, FCR at 256 per Kenny J; FCA at para 142 per Kenny J.

3. In Rajalingam the Federal Court observed that the Tribunal frequently assesses cases on information that is “fragmented, incomplete and confused”.[52]

   [52] Rajalingam, FCR at 239 per Sackville J; FCA at para 61 per Sackville J.

4. Citing Wu Shan Liang and Minister for Immigration and Ethnic Affairs v Guo and Anor[53]  the Full Court of the Federal Court in Rajalingam said that there are circumstances where the Tribunal must consider the possibility that alleged past events occurred, even where it finds that those events probably did not occur,  because the ultimate question as to whether the Tribunal is satisfied that the Applicant has a well founded fear of future persecution means that the Tribunal “must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.”[54]  

   [53] (1997) 191 CLR 559 (“Guo”).

   [54] Rajalingam, FCR 239 per Sackville J; FCA at para 60 per Sackville J; see also FCR at 254-255 per Kenny J; FCA at paras 136-137 and 139 per Kenny J.

5. It is clear that if the Tribunal is uncertain as to the occurrence of an alleged event, or finds that the alleged event might have occurred (even though it is probable that it did not), “it may be necessary to take into account the possibility that the event took place in considering the ultimate question.  Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s own fear of persecution.”[55]

   [55] Rajalingam, FCR at 240 per Sackville J; FCA at para 62 per Sackville J.

6. There is however nothing to require the Tribunal to express findings about alleged past events, and whether those events actually occurred, “in a manner which makes explicit its degree of conviction or confidence that the findings are correct”, and it is sufficient if the Tribunal “appeared to have no doubt that the probability of error was insignificant.”[56]

   [56] Rajalingam, FCR at 240 per Sackville J; FCA at para 64 per Sackville J.

7. The Tribunal will only be in error if it fails to take account of the possibility that the alleged events might have occurred (or the possibility that an alleged non-event did not occur) if, on a fair reading of the Tribunal’s reasons, it can be said that the Tribunal had “a real doubt that its findings on material questions of fact were correct”.[57]

   [57] Rajalingam, FCR at 241 per Sackville J; FCA at para 67 per Sackville J; FCR at 255 per Kenny J; FCA at para 140 per Kenny J.

8. In Applicants A233/2003 v Refugee Review Tribunal[58]  the Full Court of the Federal Court, having cited Guo, Abebe[59] and Rajalingam, said:

   “The Tribunal has not expressed its findings in a positive way, but as a lack of satisfaction about the asserted imprisonment.  It has made no observation directly critical of the claimant’s demeanour.  The two inconsistencies on which it has based its conclusion are, in context, not so dramatic as necessarily to lead to the conclusion that the claimant was fabricating evidence.  The absence of positive persuasion as to the correctness of a claim does not convert into the existence of a positive persuasion as to its incorrectness.  However, on the other hand, the Tribunal’s reasons do not on their face suggest that the Tribunal had any real doubt about its findings.  The mere fact that they were expressed in terms of a lack of satisfaction about certain events having occurred, and in terms of non-acceptance of those events having occurred, does not of itself indicate some lack of doubt on its part.  The Tribunal’s reasons are to be read as a whole.  It has ascribed significance to inconsistencies which others may have treated as minor and understandable.  The Court’s function on this application is not to assess whether it ought to have done so, but to assess whether – it having done so – in the terms and the manner it did – the Tribunal in fact retained some residual doubt that the claimed imprisonment had occurred.”[60]

   [58] [2004] FCAFC 296 (“A233”).

   [59] Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14.

   [60] A233 at para 19 per Cooper, Marshall and Mansfield JJ.

9. The Applicant also refers to N1202/01A v Minister for Immigration and Multicultural Affairs[61] where the Full Court of the Federal Court said:

   “However, the statement by the Tribunal that it was “not satisfied” as to the truth of asserted facts was not a finding that the assertions were false or that the claimed events did not occur.  It is, as it states, the recording by the Tribunal of its inability to make a positive finding of fact and that it remains unpersuaded in that regard. 

   Even if in the view of the Tribunal, the letters did not “compel” a finding by the Tribunal that facts had occurred as asserted in them, as explained earlier in these reasons the Tribunal had to consider the possibility that past events had occurred as claimed and to assess the risk of that the Appellant may suffer persecution having regard to such a possibility.  This was not a case where, on probative material, the Tribunal had found that claimed events had not occurred, thereby permitting the Tribunal, in making its ultimate decision, to disregard the possibility that such events had occurred.  In the circumstances it was necessary for the Tribunal to go on to consider the possibility that the wife’s relatives might harm the appellant were he to return to Iran or that the authorities would harm him if they had harmed and threatened his relatives.  This the Tribunal failed to do thereby providing ground for review.”[62]

   [61] (2002) 68 ALD 21; [2002] FCAFC 94 (“N1202/01A”).

   [62] N1202/01A, ALD at 36-37 per Lee, Moore and Madgwick JJ; FCAFC at paras 53-54 per Lee, Moore and Madgwick JJ.

10. The Applicant asserts that uncertainty is evident in the use of the words “without further information” by the Tribunal.  That is, that without further information from the Applicant, the Tribunal was “not satisfied” of those matters of which it had to be satisfied.  The Applicant says that this is acknowledgment by the Tribunal that it simply “does not know” and is therefore uncertain.[63]

    [63] Applicant’s Submissions, para 25.

11. The Respondents reply to the Applicant’s Submissions in a number of ways.  First, the Respondent says that where an Applicant has been advised by a Tribunal that the Tribunal is not satisfied that the relevant criterion have been met on the basis of the written material, and the Applicant is invited to attend a hearing, but fails to do so, and also fails to provide any further information, it is the “inevitable consequence” that the Tribunal will affirm the Delegate’s Decision.[64]  

    [64] NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at para 5 per French, Emmett and Dowsett JJ (“NAVX”).

12. Secondly, the Respondents say that there was no obligation on the Tribunal to make positive or negative findings of fact, and in the absence of satisfaction that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention, the Tribunal was required to affirm the Delegate’s Decision.[65]  The Court also notes that in VSAF, the Full Court of the Federal Court said the following:

    “As s.65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction.  It does not require the visa to be granted in the absence of an adverse finding.  There are many cases showing that findings of fact are not necessarily required to support a state of nonsatisfaction.”[66]

    [65] Section 65, Migration Act; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at para 16 per Black CJ, Sundberg and Bennett JJ (“VSAF”).

    [66] VSAF at para 17 per Black CJ, Sunderberg and Bennett JJ.

13. Thirdly, the Respondents say that this is not a proper case in which the Tribunal ought to have considered the Wu Shan Liang and Guo obligation to correctly apply principles for determining whether the Applicant had a well founded fear of persecution for a Convention reason.[67]  This is because the Respondents say that this is not a case within the reasoning of the majority in Guo because this is not a case where the Tribunal found that it is only slightly more probable than not that the relevant event did or did not occur.[68]  In this case, the Respondents say that the Tribunal’s finding of a lack of satisfaction was based on insufficiency of the written material originally submitted by the Applicant, and a failure to amplify that written material, either orally or in writing, at the Tribunal hearing.

    [67] The erroneously described “What if I am wrong?” principle: see para 35 and footnote 51 above.

    [68] Guo at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, where it was said that: “If, for example, a Tribunal finds that it is only slightly more probable than not that an Applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished in determining whether there is a well founded fear of future persecution.”

14. Fourthly, the Respondents say that the decisions in NAVX and VSAF were similar to this case, in that there was nothing requiring the Tribunal to make assumptions as to the truth of the Applicant’s claims, and then to determine based on such assumptions, whether there was a well founded fear of future persecution.[69] 

    [69] Respondent’s Submissions, para 33.

15. Fifthly, the Respondents relied on the decision of the Federal Court in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs.[70]  The decision is one in the appellate jurisdiction of the Federal Court, Allsop J sitting as a single judge on appeal.[71]

    [70] [2005] FCA 1195 (“SZEZI”).

    [71] Pursuant to a direction of the Chief Justice of the Federal Court under s.25(1A) of the Federal Court of Australia Act, 1976 (Cth): SZEZI at para 2 per Allsop J.

16. In SZEZI the Federal Court observed that:

    a)the Tribunal had told the appellant that he needed to attend the hearing to put matters to the Tribunal, but the appellant did not do so;[72]

    b)the Tribunal thus remained unsatisfied of the relevant criterion in relation to protection obligations to the appellant under the Refugees Convention;[73]

    c)the Tribunal set out why it was not satisfied that the appellant had a well founded fear of persecution;[74]  

    d)that in those circumstances, unless the Tribunal somehow misdirected itself or otherwise failed to apply with applicable law, ss.36 and 65 of the Migration Act read together, required the refusal of the visa.[75]

    [72] SZEZI at para 26 per Allsop J.

    [73] SZEZI at para 26 per Allsop J.

    [74] SZEZI at para 26 per Allsop J.

    [75] SZEZI at para 26 per Allsop J, citing NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119 at paras 52-56 per Allsop J: (“NBGZ”) (now reported at (2005) 143 FCR 434 at 447 per Allsop J.)

17. In SZEZI the Federal Court went on to say the following:

    “The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state.  It was not satisfied that the appellant had a well founded fear because of subjectively perceived inadequacies in the information.  The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited.”[76]

    [76] SZEZI at para 29 per Allsop J.

18. Although the passage from SZEZI cited above was related to the question of whether information was the reason or part of the reason for the decision, the exposition of the Tribunal’s rationale is equally applicable to the Tribunal’s rationale in this case.  It assists in highlighting that this is not a case which comes within the reasoning of the majority in Guo, and the Court so finds.

19. The Court is also of the view that the Applicant’s Submission that the Tribunal’s use of the words “without further information” discloses uncertainty on the part of the Tribunal is not correct.  The Court sees no uncertainty in the Tribunal’s decision.  The Tribunal did not express uncertainty, doubt or a lack of surety.  No doubt if the Tribunal was uncertain, in doubt or unsure it was capable of saying so.  It did not, and on a fair reading of the Tribunal Decision, the Tribunal appears to have had no real doubt, or lack of certainty.[77]  On the written material originally submitted by the Applicant, the Tribunal was not satisfied that the Applicant was owed protection obligations.  The Tribunal informed the Applicant of that fact.  The Applicant did nothing, and did not attend the hearing.  In those circumstances, logically and practically, the Tribunal ought remain unsatisfied.  The Tribunal did so, but only did so, after explaining why.  Thus the Tribunal found:

    [77] Rajalingam, FCR at 240 and 241 per Sackville J; at 255 per Kenny J; FCA at paras 64 and 67 per Sackville J; at para 140 per Kenny J; A233 at para 19 per Cooper, Marshall and Mansfield JJ.

    a)that the Applicant’s claims were lacking in detail;

    b)that without further information the Tribunal was not satisfied that the Applicant:

    i)joined religious gatherings of a Bible study group;

    ii)distributed religious material;

    iii)was detained by the police;

    iv)was subjected to interrogation and physical mistreatment;

    v)was involved in various religious activities in the named provinces;

    vi)had his house was raided by the PSB on 10 May 2005; or

    vii)had religious materials found in his house.[78]

    [78] CB 73.

20. The Tribunal did not however merely remain unsatisfied.  Following from its lack of satisfaction it made a specific finding that it did “not accept” that the Applicant “fled China fearing harm from the Chinese authorities for his religion.”[79]  Thus the Tribunal was unable to be satisfied that the Applicant had a well founded fear of persecution for a Convention reason, namely, religion.[80]  The Tribunal’s finding that it did not accept that the Applicant fled China fearing harm from the Chinese authorities for his religion was a finding open on the material before the Tribunal, as was the consequent lack of satisfaction of a well founded fear of persecution for a Convention reason.

    [79] CB 73.

    [80] CB 73.

21. As the Federal Court found in SZEZI, the Tribunal likewise in this case has arrived at an “evaluative conclusion founded on the perceived inadequacy of the information.”[81]  That is not a state of uncertainty, but a certain conclusion, albeit based on the inadequate information put before the Tribunal by the Applicant: a situation not uncommon in migration applications.[82]  As was observed, correctly, with respect, in NBGZ:

    “an obligatory task does not devolve upon decision-makers, whether delegates of the Minister or Tribunal members, to undertake the initiative of articulating or imputing definitive expression to refugee claims which may rightly be regarded as vague as well as otherwise unsubstantiated.”[83]

    [81] SZEZI at para 29 per Allsop J.

    [82] See para 34 above.

    [83] NBGZ, FCR at 446 per Conti J; FCA at para 48 per Conti J.

22. The Court adopts and follows, the recent, and on their facts, directly applicable, judgments of the Full Court of the Federal Court and the Federal Court exercising single judge appellate jurisdiction in NAVX, VSAF and SZEZI.  Thus the Tribunal having notified the Applicant of the inadequacy of the written material originally submitted, and having invited the Applicant to attend before it, which the Applicant did not do, it was, in the Court’s view, the “inevitable consequence” that the Tribunal would affirm the Delegate’s Decision to refuse the Applicant a Protection Visa.  To the extent that N1202/01A says something different, the Court declines to follow it, preferring the judgments in NAVX, VSAF and SZEZI.

23. For the reasons set out above, ground (b) fails.

Ground (c)

1. The Applicant asserts that Ground (c) “is in many ways … simply another way of expressing ground (b)”.[84]  The Applicant asserts that the Tribunal failed to apply the correct standard of proof because it failed to assess whether there was a well founded fear of persecution based on whether there was a “real chance” of persecution.[85] 

   [84] Applicant’s Submissions, para 27.

   [85] Citing Rajalingam, FCR at 230-235 per Sackville J; FCA at paras 32-45 per Sackville J; and SZDTZ v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FMCA 1392 at para 23 per Smith FM.

2. It is axiomatic that the Tribunal must determine the prospect of future persecution based on whether there is a real chance of persecution, rather than the balance of probabilities.[86]  The Tribunal understood this.[87] 

   [86] Wu Shan Liang at 263 and 271 per Brennan CJ, Toohey, McHugh and Gummow JJ.

   [87] CB 68-69. 

3. There is no evidence that the Tribunal wrongly applied a balance of probabilities test in this case.  Rather, for reasons set out above,[88] the inadequacy of the information afforded the Tribunal by the Applicant precluded the Tribunal from making an assessment of the Applicant’s prospects of being persecuted in the future for a Convention reason.  As indicated above, this is a case where the consequence of the Applicant’s failure to provide information was inevitable.

   [88] See paras 50-54 above.

4. Ground (c) therefore also fails.

Conclusion

1. For the reasons set out by the Court above the Applicant has failed to make out any of the grounds for review.  There is no jurisdictional error in the Tribunal Decision.  The Application will therefore be dismissed.  The Applicant must pay the costs of the Respondents.  The Court will hear the parties as to the quantum and allocation of costs.

I certify that the preceding fifty- nine (59) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  M Hewitt

Date:  20 July 2007