SZJFP & Anor v Minister for Immigration
[2007] FMCA 1320
•14 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJFP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1320 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 425, 476 Federal Magistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253 Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 Huo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 383 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NALQ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 121 Re Minister; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578 Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 W148/00A v Minister (2001) 108 ALR 703 WAEE v Minister [2003] FCAFC 184 Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 Zeng v Minister for Immigration & Anor [2007] FMCA 169 |
| First Applicant: | SZJFP |
| Second Applicant: | SZJFQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2289 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| Advocate for the Applicants: | The applicants appeared in person with the assistance of a Mandarin interpreter |
| Counsel for the First Respondent: | Mr B O’Donnell |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 17 August 2006 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2289 of 2006
| SZJFP |
First Applicant
| SZJFQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZJFP” (applicant husband) and “SZJFQ” (applicant wife).
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 August 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 6 July 2006 and the applicants were notified by letter on 18 July 2006. The decision affirmed a decision of a delegate of the first respondent made on 10 March 2006, refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
The applicants seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 10 October 2006. I have marked it Exhibit “A” and it was read into evidence.
Background
The Tribunal decision of R Inder, reference N060343299, provides the following background information:
The Applicants, who claim to be citizens of China (PRC), arrived in Australia on 31 December 2005 and applied to the Department of Immigration and Multicultural Affairs for Protection (Class XA) visas on 10 February 2006. The delegate decided to refuse to grant the visas on 10 March 2006 and notified the Applicants of the decision and their review rights by letter dated 10 March 2006 and posted the same day. The Applicants applied to the Tribunal on 11 April 2006 for review of the delegate’s decision.(CB 193)
The first respondent’s written submissions prepared by Mr O’Donnell provides a summary of the applicant husband’s claims:
5. The applicant’s refugee claims were set out in a statutory declaration attached to his protection visa application (CB25-27). In summary, his claims were:
(1) Since January 2001, the applicant had managed a shop in the city of Fuzhou, which is the capital of the Fujian Province of the PRC. However, his family lived in the Fuqing province, which was quite a distance from his shop in Fuzhou. Consequently, he often slept in his shop rather than at home.
(2) The applicant was befriended by a regular customer, Mr Lin, who lived nearby and often invited the applicant to his home for dinner or to stay. After a time, Mr Lin revealed to the applicant that he was a Catholic. Mr Lin also revealed that he did not attend a government-sanctioned church, but was in fact a leader of a group belonging to the “Roman Catholic Underground Church”. The applicant began to attend Mr Lin’s religious group from March 2003.
(3) In January 2004, Mr Lin was arrested by the PRC security forces (“the PSB”) on suspicion of having organised underground religious activities. The PSB did not know of the applicant’s involvement, but interrogated him “4 or 5 times” as a known associate of Mr Lin.
(4) The applicant did not attend religious activities for some time after this incident, as the PSB were actively looking for underground religious activities in his area. The applicant heard that Mr Lin had been sent to a labour camp in a remote province.
(5) In April 2004, a representative of the underground church approached the applicant and asked if the group could use his shop for secret religious gatherings at night. The applicant accepted.
(6) From April 2004 until October 2005, the applicant’s shop was “a secret gathering place for the underground church”. The applicant was responsible for preparing the relevant room for the religious gatherings, for security and to help communicate times for gatherings to the members.
(7) From the middle of 2005, the PSB began to pay particular attention to the applicant’s shop in its investigation of underground religious activities. The PSB interrogated the applicant “7 or 8 times” but could not find evidence against him. For the applicant’s safety, the group ceased to use the applicant’s shop as a gathering place in October 2005. Members of the group suggested to the applicant that he try to go overseas for a time. The applicant and his wife already had passports and, with the assistance of a friend who worked in a travel agency, acquired a visitors visa for Australia in mid-December 2005. (The applicants arrived on 31 December 2006: CB193.2).
(8) In January 2006, shortly after his arrival in Australia, the applicant learned that his shop had been “sealed” by the PSB, that the applicants’ home had been searched, that several key members of the underground group had been arrested and that the PSB now regarded the applicant as a key member of the underground church.
(9) The applicant fears that he will be persecuted for his religious activities if he returns to the PRC.
6. A delegate of the Minister refused the applicant’s protection visa application on 10 March 2006 (CB41-52).
I also adopt paras.7 to 12 of those submissions in respect of the application’s application to the Tribunal for review:
7. On 11 April 2006, the applicants applied to the Tribunal for review of the delegate’s decision (CB53-57).
8. On 24 May 2006, the Tribunal wrote to the applicant informing him that it could not decide in his favour based on the material currently before it and invited him to appear before the Tribunal to give further evidence and present further arguments in support of his claims (CB60): see s 425 of the Act.
9. The applicant appeared at the scheduled Tribunal hearing on 5 July 2006 (CB64-5). The Tribunal asked the applicant questions regarding his Christianity in general and Catholicism in particular, as well as questions about the government treatment of Christianity in the PRC (CB197-198). The Tribunal also heard evidence from a Father Paul McGee (CB195.4), who confirmed that the applicant’s had been attending church in Australia (CB199.5). The Tribunal and received several documents from the applicant and Father McGee, including letters from the Chinese Bishop Joseph-Lin Yuan Tuan.
10. On 18 July 2006, the Tribunal handed down its decision to affirm the delegate’s decision to deny the applicants protection visas (CB190-204).
11. The Tribunal made the following findings that were consistent with the applicant’s claims:
(1) The applicants are citizens of the PRC (CB200.2).
(2) The letters provided by the applicant from Bishop Joseph-Lin Yuan Tuan established that the applicants were church believers and had been baptised (CB201.3).
(3) The applicant had been attending church in Australia (CB202.6).
12. However, the Tribunal made the following findings that were inconsistent with the applicant’s claims:
(1) The applicant’s claims were extremely vague and general. He revealed no real knowledge of Christianity, the Christian faith, Jesus’ teaching, the Roman Catholic faith or the Bible. (CB200.3-6)
(2) Indeed, the applicant did not appear to know the difference between the official patriotic Catholic church and the Roman Catholic Church (CB202.4).
(3) Given the applicant’s ignorance of the details of the Catholic religion, the Tribunal found that the applicant was not an active participant in the underground Roman Catholic Church in the PRC and did not have a well founded fear of persecution (CB201.3).
(4) If the applicant had been active in Christianity, Bishop Joseph-Lin Yuan Tuan would have mentioned this is some way or other in his letters, given that he did give details of the second applicant’s involvement in the church (CB201.4).
(5) The applicant was not a key members of the underground church in the PRC (CB201.4).
(6) The applicant has embellished his claims in order to enhance his claims for protection (CB201.5).
(7) The applicant is not a credible witness (CB201.5).
(8) Only if he had firmly held religious beliefs and was at least to some degree committed to and knowledgeable about his faith would the applicant have been involved in the underground activities he claimed. Given that the applicant did not have these characteristics, the Tribunal is not satisfied he engaged in these activities (CB202.4).
(9) The applicant was not a leading member of an underground church, was not interrogated by the PSB and had his shop or home closed (CB202.5).
(10) The applicant attended church in Australia solely for the purpose strengthening of his refugee claims. Thus, this fact should be disregarded under s 91R of the Act. (CB202.7).
On this basis, the Tribunal found that the applicant did not have a well founded fear of persecution if he returned to the PRC.
Application for Review of the Tribunal’s Decision
On 17 August 2006, the applicants filed an application for a review under in this Court s.39B of the Judiciary Act. At the first Court date, the applicants were granted leave to file an amended application giving complete particulars of each ground of review relied upon, by
9 November 2006. They complied with that order and filed an amended application on that date containing the following grounds:
1. The Presiding Member of the Tribunal, Mr.Rodney Inder (“the Presiding Member”), failed to assess my claims, fairly and properly.
Particulars
a. Firstly, I did not accept that my claims are extremely vague and general. Even based on part of Claims made at the hearing summarized by the Presiding Member, I indeed tried my best to explain major point of my claims; for examples:-
- My shop in china has been closed and I have been charged with holding illegal gatherings and undertaking illegal religious activity;
- I have been a representative of the underground church;
- The PSB often went to my shop;
- From 2005, I mainly participated in illegal gatherings together with about 15-16 people
b. The issue is that the Tribunal’s hearing was conducted by the Presiding Member but not me. In other words, my oral evidences have been restricted by the questions put by the Presiding Member. But, the trouble is that Presiding Member only put to me some general questions, such as why I believe I am a refugee, what underground church activities I participated in, and so on. The Presiding Member did ask me to give more details, but he never clearly indicated what details he wanted, such as Date? Place? Persons? As a matter of fact, before the Tribunal’s hearing, I have already provided detailed claims in the Statutory Declaration attached to my primary application to the Department of Immigration and Multicultural Affairs (“the Department”); and I really did not know what kind of details that the Presiding Member wanted while I was put such a general question at the Tribunal’s hearing.
c. The Presiding Member should have basic knowledge about UNHRC Handbook; and understand that:-
190. It should be recalled that an application for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specifically established procedures by qualified personnel having the necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs.
198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.
199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.
d. Although the Presiding Member may not be bounded by UNHCR Handbook, he should have basic knowledge that I am in an alien environment; and I must experience serious difficulties, technical and psychological, in submitting my case in a language not my own. The Presiding Member should also understand that I, because of my experiences in China, must be in fear of the authorities in my own country, and must still feel apprehensive vis-à-vis any authority. In such a situation, the Presiding Member should put his questions to me, more clearly and more accurately, at the Tribunal’s hearing, which can easily conduct me to provide more detailed claims; but not those general questions.
e. Furthermore, although an initial hearing my bring my claims to light, it should be necessary for the Presiding Member to clarify any apparent inconsistencies and to resolve any contradictions in a further hearing and to find an explanation for any misrepresentation or concealment of material facts.
f. Secondly, I never accept that I revealed no knowledge of the Roman Catholic faith. As a matter of fact, I never think that the Presiding Member has raised relevant questions, properly and fairly. For example, I was asked what my favourite passage in the Bible was, and I was immediately confused by the questions from the beginning, because I really did not understand the general purpose why the Presiding Member put such a question to me. As a devote Roman Catholic, I believe that every passage in the Bible must be my favourite one; in other words, I regard the whole book of the Bible as my favourite one. So, how could I know to answer such a question?
g. Moreover, the Presiding Member has completely ignored the fact that it was very much difficult for the interpreter at the Tribunal’s hearing to translate those particular religious terms, properly and accurately.
h. Thirdly, the Presiding Member should not ignore the evidences that:-
.- A letter from Bishop Johnson-Lin, Yun Yuan, Chief Priest of the Catholic Fuzhou Archdiocese;
- Evidence from Father Paul McGee, who has personally attended the Tribunal’s hearing;
- US Department Country Human Rights Practice Report 2004
- International Amnesty Human Rights Report.
i. .I understand that the court would not concentrate on merit review but judicial one. However, the Tribunal must exceed its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power.
j. In my case, I do not indeed believe that the Presiding Member has identified a wrong issue, asked a wrong question, ignored relevant material, and particularly reached a mistake.
k. I am a devote Roman Catholic, and I must be subjected to persecution on my return.
2. The Presiding Member failed to comply with his obligation under s.424A(1) of the Act.
Particulars
a. I had to accept that some of issues were discussed, briefly and generally, at the Tribunal’s hearing. However, the Presiding Member failed to, clearly and fairly, give me particulars of those issues which had been mentioned above at any time before he reached his decision; and
b. The Presiding Member failed to ensure me to understand, clearly and properly, that those issues would be directly in relation to my review application; and
c. The Presiding Member failed to give a genuine chance comment them.
d. Apparently, the Presiding Member failed to comply his obligation under the s.424A(1) of the Act.
e. Similarly, the Presiding Member has failed to comply with his obligations under s.425 of the Act.
3. Similarly, the Presiding Member has failed to comply with his obligations under s.425 of the Act.
Particulars
a. According to information provided by the Tribunal, I should have two rights at the Tribunal’s hearing. Firstly, I was allowed to give my oral evidences in support of my claims; and secondly, I could present my arguments against the issues arising from the Tribunal in relation to my application.
b. In my case, however, I was in troubles at the Tribunal’s hearing. The Presiding Member indeed discussed my claims by asking me a numbers of questions at the hearing; but he refused to make me clear what the issues were in relation to my application. The Presiding Member, particularly, refused to ensure me to understand what particulars of those pieces of information that he intended to use as a reason, or part of reasons, in determining my review application during the hearing. As a result, during the hearing, I thought that I had well been understood by the Presiding Member; and there were no issues (negative) arising from him against my claims. But, according to the Tribunal’s decision, there were many of negative issues arising from the Tribunal’s hearing.
c. It is apparently, that I have been denied to present my arguments against those negative issues in relation to my review application during the hearing, solely for the reason that the Presiding Member refused to ensure me to understand what particulars of those pieces of information that the Presiding Member intended to use as a reason, or part of reasons, in determining my review application.
4. Furthermore, the Presiding Member has completely ignored important evidences submitted by from Father Paul McGee; and the Presiding Member has NEVER carefully considered and honestly referred to the independent evidences available to himself.
5. It is especially unfair that the Presiding Member only picked up piece of independent information according to his own subjective interest.
6. In summary, I have never believed that my review application has been fairly and carefully assessed by the Tribunal..
Submissions and Reasons
The applicants were self-represented litigants who appeared with the assistance of a Mandarin interpreter. At the directions hearing of
23 November 2006, I ordered the applicants to file and serve short written outline of submissions and a list of authorities 14 days before the hearing. However, they failed to comply with this order. When invited to make oral submissions in support of his grounds, the applicant husband read a prepared statement which effectively repeated the particulars in the amended application.
Mr O’Donnell indicated that he would rely upon his written submissions as the lengthy oral submissions of the applicant did not ventilate any new issues in respect of the grounds of judicial review. Mr O’Donnell made the general observation that the Tribunal’s assessment of the applicant husband’s credibility was based on internal inconsistency, implausibility and lack of consistency with independent country information, which was clearly within its jurisdiction: Re Minister; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; W148/00A v Minister (2001) 108 ALR 703 at [64]-[65].
Further, there is no basis for jurisdictional error in a wrong finding of fact: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137]. To grant relief for such an error would be to allow merits review which is impermissible: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
Particular (a) of the first ground, a general claim that the Tribunal failed to consider and accept various claims made by the applicants. Mr O’Donnell submits that the Tribunal’s reasons clearly indicate that each of the identified aspects were considered and then rejected by the Tribunal. The Tribunal observed at the commencement of its “Findings and Reasons”:
The Tribunal finds that the Applicant’s claims are extremely vague and general and reveal no knowledge of Christianity, the Christian faith, Jesus’ teaching, the Roman Catholic faith, or the Bible.(CB 200.2)
The balance of the “Findings and Reasons” analyses in detail the applicant husband’s responses which confirm that finding.
Mr O’Donnell submits that particular (b) of the first ground appears to be a complaint about how the hearing was conducted. He submits that for the Court to consider such a claim, the applicants would need to put a transcript in evidence which they have not done. I acknowledge the difficultly that the applicants face as self-represented litigants in these proceedings. However, they have been represented since their original visa application by Ms Priscilla Yu who is an experienced migration agent. Ms Yu’s organisation represents numerous applicants in this Court and is familiar with the general requirements in respect of evidence and what is required to succeed in an application.
All applicants to this Court are provided with information that Tribunal hearings are recorded and that if they wish for these to be submitted they must be transcribed and annexed to an affidavit. The original and amended applications have the characteristics of material prepared by Priscilla Yu’s organisation. Particular (b) would have been submitted with the knowledge of the evidentiary requirements needed to satisfy the claim. Mr O’Donnell submits, and I agree, that particulars (c), (d), (f) and (g) suffer from the same problem.
It is submitted that to the extent that particulars (c) and (d) are claims that the Tribunal did not take into account the special vulnerabilities and difficulties of refugee applications, it is clear that the Tribunal made allowance for such difficulties. This is demonstrated by the following passage from the Tribunal’s “Findings and Reasons”:
The Tribunal nevertheless again tried to encourage him to express some views about his claimed Roman Catholic beliefs and asked if he was a Christian, and the Applicant replied in the affirmative. Asked what being a Christian meant to him, he simply replied Christ is life but made no attempt to explain what he meant or what Christ meant to him or how it affected his life. The Tribunal repeated its question and the Applicant then claimed that you must believe in Jesus Christ. While it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt, it is not the case that the evidence of an applicant should be believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. The Tribunal is not required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.(CB 201.8)
Mr O’Donnell submits that contrary to the claims in particular (e), there is no requirement for the Tribunal to hold multiple hearings. Section 425 of the Act imposes on the Tribunal an obligation to issue an invitation, without any continuing obligation to give an applicant a reasonable opportunity to appear: Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 at [37]; NALQ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 121 at [32]; Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 at [28]; Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578.
Section 425 does not regulate comments made at a Tribunal hearing, nor does it require the Tribunal to invite an applicant to attend multiple hearings. Even if the Tribunal receives further information after a hearing, it is not necessary for it to conduct a further hearing: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [218]-[219]; Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253 at [258]-[260]. However, in that circumstance, the applicant should be invited to make relevant comments: Huo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 383 at [9].
Mr O’Donnell submits that particular (f) is an attempt to proffer a better and more complete answer to a question asked by the Tribunal at the hearing. It is for the Tribunal to decide on the applicants’ refugee claim. The proffered answer is a question of fact for the Tribunal and therefore an impermissible request for merits review by this Court
Particular (h) alleges that the Tribunal failed to consider certain evidence put forward by the applicants. It is clear from the Tribunal’s reasons that it considered the letter from Bishop Johnson-Lin and the evidence of Father Paul McGee. The Tribunal made the following observation after discussing the Bishop’s letter:
Accordingly, while accepting from the letters from Bishop Joseph-Lin, Yuan Tuan that the Applicants were church believers and had been baptised, given all of the above including the Applicant’s almost total ignorance of Christianity, the Bible, Christian practices, and indeed the Roman Catholic religion, the Tribunal has not been able to satisfy itself that the Applicant was an active Christian in the Roman Catholic underground church China who has a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis. Indeed, the Tribunal is satisfied that if the Applicant had been an active Christian, Bishop Joseph-Lin, Yuan Tuan would have mentioned this in some way or other as he did in regard to the second named Applicant when he said that she had taken part in the reconciliation and confession, believes in the Roman Catholic Church, and is a pious and loyal Catholic.(CB 201.3)
With respect to the two country information reports provided by the applicants, there is no reasons to believe that they were not considered. Although the Tribunal demonstrated a general understanding of the situation of underground churches in China, it did not need to go further because it did not believe the applicants’ claims. There is nothing to indicate that there was anything in the reports critical to whether the Tribunal might believe the applicants’ claims. Mr O’Donnell referred to WAEE v Minister [2003] FCAFC 184 at [46]-[47] where French, Sackville and Hely JJ stated:
46 It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Particulars (i) and (j) merely summarise some of the law on judicial review of migration decisions, while particular (k) amounts to a request for a merits review.
The second ground of the amended application alleges a number of failures by the Tribunal to comply with s.424A of the Act. The applicants do not identify or particularise the information that they allege the Tribunal failed to provide. Mr O’Donnell contends that without identification of the information, the allegation is without substance.
The leading case on s.424A is now the recent decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. Based on that authority, there was no breach of s.424A in this case for the following reasons. First, the protection visa application was not the reason or part of the reason for the Tribunal’s decision. As the majority observed in SZBYR at [17]:
…it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
Secondly, inconsistencies do not form “information” within the meaning of s.424A. As the majority in SZBYR said at [18]:
…if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information":
“does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Thirdly, s.424A does not apply after a Tribunal hearing, see SZBYR at [19]:
…regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing, no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the Tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the Tribunal from dealing with such matters during the hearing itself.
The majority’s conclusion SZBYR at [21] is apposite to this case:
The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal.
Additionally, the first respondent does not accept that the Tribunal’s reasons are relevant to determining whether there has been a breach of s.424A. The question must be determined in advance. As the majority said in SZBYR at [17]:
Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
The third ground claims that the Tribunal failed to comply with s.425 of the Act. Mr O’Donnell submits with respect to particular (a) of the third ground that the applicants fundamentally misunderstood the Tribunal’s obligation under s.425. The applicants are not provided with two Tribunal hearings – one to give evidence and another to present arguments. The applicants suggest that the Tribunal member did discuss a number of issues with the applicant husband generally. However, they do not identify the information nor the inadequacies or shortcomings which were adverse to them.
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30]-[32] considered s.425 in the context of the broader operation of Part 7, Division 4 of the Act:
30 The obligation of the Tribunal under s 425 of the Migration Act is to issue an invitation to the applicant for review to attend a hearing. That invitation must be real and meaningful and not just an empty gesture – Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at [33]; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR at 188 [31]. In Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at [44] the Full Court expressly rejected a submission that changes made to s 425 had diminished the applicant’s right to appear before the Tribunal to ‘a merely formal right to be invited ...’. Importantly also s 425 did not, at the time of the present appellant’s application to the Tribunal, exhaust the requirements of procedural fairness so far as they relate to the right to be heard. Put in that context the effect of the subsequent enactment of s 422B does not fall for consideration in this case.
31 The Full Court in SCAR characterised the requirements of s 425 as ‘objective’. Their Honours said (at [37]):
‘The statutory obligation upon the tribunal to provide a "real and meaningful" invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill heath: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140.’
32 In his judgment in NAHF Hely J found for the appellants on the basis of a want of procedural fairness rather than a breach of the obligation imposed by s 425. As to the latter, he followed the views expressed by Branson J in Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434 and approved by Wilcox J in Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 and by Beaumont J in Sreeram v Minister for Immigration and Multicultural Affairs (2001) 106 FCR 578. In Mohammad, Branson J said of s 425 and the change in its language (at [43]):
‘This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement.’
The operation of s.425 was also considered in Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 at [37]:
…The Tribunal issued an invitation that complied with the requirements of s425A. That invitation remained open. …If, as I believe, s425 imposes on the Tribunal only an obligation to issue an invitation, without any continuing obligation in relation to a reasonable opportunity to appear, that is the end of the matter; at least so far as this Court is concerned.
In this matter, the Tribunal issued the invitation letter on 24 May 2006 which complied with the requirements of the Act. The applicants returned the “Response to Hearing Invitation” accepting the invitation. They also included documents such as copies of pages of the applicant husband’s passport, photographs, letters of support and various articles. The scheduled hearing took place on 5 July 2006 and the applicant husband is recorded as giving evidence and presenting argument. Evidence was also given by a Father Paul McGee.
Zeng v Minister for Immigration & Anor [2007] FMCA 169 considered the issue of multiple hearings and the conduct of a further hearing when the Tribunal receives further information. Federal Magistrate Riley reviewed the authorities that establish an obligation to issue a genuine invitation to appear. Again, it does not regulate the hearing nor require the Tribunal to invite the applicant to attend multiple hearings: Zeng at [122]-[131].
Mr O’Donnell submits that particular (b) of the third ground complains on how the hearing was conducted and thus suffers the same deficiency as particular (b) of ground the first which is considered at [14] to [15] above.
Similarly, particular (c) of the third ground appears to be a s.424A claim and Mr O’Donnell relies on his earlier submissions which I have discussed at [23] above.
Mr O’Donnell submits that the fourth ground repeats one of the allegations in particular (h) of the first ground, which is addressed at [20] above.
Mr O’Donnell also submits that the fifth ground appears to be a request for impermissible merits review of the Tribunal’s particular choice of country information.
The sixth ground repeats general claims against the Tribunal and does not identify any jurisdictional error. I do not believe this ground requires further consideration.
The second applicant is these proceeding is the applicant wife and has made no specific claim of persecution herself. Her application is limited to that she is the wife of the primary applicant. She did give evidence at the Tribunal hearing and this was noted in the decision record. During the hearing before this Court, the second applicant made a number of highly emotional statements about her inability to return to China because of her fear of persecution due to her Christian beliefs. The applicant wife wished to provide the Court with religious objects and a copy of the Bible written in Mandarin. When I explained to her the purpose of the Court hearing through the interpreter, she made no further statements although she continued to appear severely distressed.
Conclusion
The applicants in these proceedings are self-represented litigants and appeared with the assistance of a Mandarin interpreter. From the time of lodging the protection visa application, the applicants have been represented by a registered migration agent – Ms Priscilla Yu of Priscilla International Co. Pty Ltd. The applicants also availed themselves of the opportunity to receive legal advice from a Court-sponsored panel adviser. Despite this assistance, it is apparent that the applicants misunderstood that the hearing before this Court was a further merits review of their application and that they wished to re-ventilate the circumstances behind their protection visa application.
The amended application did identify sections of the Act which the applicants claim were breached by the Tribunal in its decision-making process. However, the applicants have no understanding of the alleged errors, nor their relevance to the claims made. The original and amended applications, together with the oral submissions relying on a prepared statement written in Mandarin, have elements in common with many other such applications to this Court when assisted by Ms Yu’s organization. This is apparent by certain obvious errors made by the applicant husband during oral presentation on issues in respect of his religious beliefs. When I queried the errors, the applicant husband repeated the misunderstanding.
I am satisfied that none of the grounds contained in the amended application can be sustained nor is it apparent that any other error exists in the Tribunal decision which can be discerned from the face of the document. In the circumstances, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 13 August 2007
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