SZJQF v Minister for Immigration

[2008] FMCA 786

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJQF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 786

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the applicant should have been invited to a further hearing – no obligation to hold a further hearing unless a new issue emerges – Tribunal did not consider irrelevant matters – choice and use of independent country information a matter for the Tribunal – applicant seeking impermissible merits review – no bias – country information within s.424A(3)(a) exception – adverse credibility finding put to the applicant – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A, 425, 91R, 422B, Division 4 of Part 7

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
R v Australian Broadcasting Tribunal; ex parte 2HD [1979] HCA 62; (1980) 144 CLR 45
McPhee v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 77
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 237 ALR 64
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZILQ v Minister for Immigration & Citizenship [2007] FCA 942
SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100
NBKM v Minister for Immigration & Citizenship [2007] FCA 1413
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, (2005) 215 ALR
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZGBT v Minister for Immigration & Citizenship [2007] FCA 565
SZGYV v Minister for Immigration & Multicultural Affairs [2007] FCA 1313

Applicant: SZJQF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3236 of 2006

Judgment of: Nicholls FM

Hearing dates: 9 October 2007 & 6 December 2007

Date of Last Submission: 28 January 2008

Delivered at: Sydney

Delivered on: 20 June 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Blake Dawson

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

2. The application made on 6 November 2006 and amended on 14 February 2007 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3236 of 2006

SZJQF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) filed in this Court on 6 November 2006, and amended on 14 February 2007, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 15 September 2006 and handed down on 5 October 2006, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. When this matter first came on for hearing, a number of deficiencies were identified in the bundle of relevant documents that had been filed by the first respondent. Orders were made to adjourn the hearing to enable a complete set of relevant documents to be put before the Court. This was subsequently done by documents filed on 11 October 2007 (the Court Book – “CB”). (The second version of the relevant documents was also somewhat deficient, in that a number of pages from the application for a protection visa were missing, but these were not material to the applicant’s grounds before the Court).

2. The following relevant background may be discerned from the Court Book. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 24 January 2005 and applied for a protection visa on 27 January 2005 (CB 1 to CB 35, with annexures).

The Applicant’s Claims

1. The applicant’s claims to protection were set out in her statement (CB 19). She claimed to be a Falun Gong practitioner in China and a “leader in our district” who had been dismissed from her employment and detained for one month by the authorities, because she organised her colleagues and friends to practise Falun Gong. She was physically and mentally tormented, and was forced to disclose details of other members.

2. After her husband paid a bribe, she was released, but was without employment. In these circumstances, she “devoted more time” to Falun Gong. She eventually found another job, but continued to be active with Falun Gong. In October 2004, police came to her home and took away her computer and promotion leaflets about Falun Gong. The applicant became concerned that she was to be charged “formally,” particularly as the investigation concerned the sending of commercial promotional messages to overseas Falun Gong members, which was regarded as an illegal activity. Following the payment of the bribe, the applicant was able to obtain a passport and to travel to Australia.

3. Following refusal of the application the applicant sought review by the Tribunal on 9 April 2005 (CB 45). The claims were summarised as:

   “I suffered persecuted from the Chinese authorities because of my belief in Falun Gong. I was arrested by the Chinese authorities. I suffered both mentally and physically because of my belief. I could not enjoy freedom o belie in China. In order to avoid further persecution from the Chinese and to practice Falun Gong freely, I came to Australia and lodged my application for a protection. However, it was refused by RRT [this appears to be a reference to the delegate] because I had not prepared my application well. I hope that it can reassessed by you” (CB 49).

[Errors in original]

Before the Tribunal

1. The applicant appeared before the Tribunal (as previously constituted) on 15 June 2005. The Tribunal affirmed the decision not to grant a protection visa. This decision was subsequently set aside by orders made, by consent, by this Court on 15 May 2006 (CB 70).

2. The applicant appeared before the Tribunal (as constituted by the member who made the decision currently before the Court) on 10 August 2006 and gave evidence. The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 103.6 to CB 107.7). I also note that in its decision record the Tribunal states that it had regard to the “tape” of the hearing before the previously constituted Tribunal, and to the “claims and evidence” summarised in the earlier constituted Tribunal’s decision record (see the CB 101.6 to CB 103.5).

3. Following the hearing on 16 August 2006, the Tribunal sent the applicant what it described as a “notice under s.424A.” (See CB 107.7. A copy of the notice is reproduced at CB 84 to CB 89). The applicant was invited to comment on what the Tribunal said were inconsistencies between her evidence at the hearing before it and her claims in her protection visa application and her claims as put to the Tribunal as previously constituted. The applicant’s response dated 9 September 2006 (but recorded as having been received by the Tribunal on 8 September 2006) is reproduced at CB 90.

4. The Tribunal understood the applicant’s claims to protection to be that she feared to return to China because she was a Falun Gong practitioner. The Tribunal found that the applicant was not a credible or truthful witness (CB 114.5). The Tribunal’s reasons for this were:

   1)The applicant’s evidence at the hearing before it indicated a lack of knowledge of the history, principles and practice of Falun Gong (CB 114.6).

   2)There were inconsistencies in the applicant’s evidence as to when and where she was detained, and what happened when she was detained, and why she was released (CB 115.8).

   3)There were inconsistencies in the applicant’s evidence as to what she did after she was released (CB 116.5).

   4)There were inconsistencies in the applicant’s evidence as to why police came to search her home in October 2004 (CB 116.8).

   5)The evidence the applicant provided at the hearing before the Tribunal about how Chinese authorities responded when they came to her home was not consistent with independent information available to the Tribunal (CB 117.3).

   6)The Tribunal did not accept the applicant’s claim that she practised Falun Gong in Australia given the applicant’s inability to provide important details relating to this claimed practice (CB 117.6).

5. In all, the Tribunal therefore rejected each aspect of the applicant’s claims, and the incidences of harm that she said had occurred. It found, therefore, that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason, and therefore affirmed the decision under review.

The Application to the Court

1. By way of amended application, the applicant puts forward the following grounds:

   “1. The Tribunal relied upon irrelevant materials for refusing my application for a protection visa.

   2. The Tribunal did not consider my application according to S91R of the Migration Act. The tribunal had bias against me and did not consider the information provided for reply of the letter from RRT under S424A of the Migration Act 1958.

   3. The Tribunal referred to wrong information for the consideration of my application.

   3.  The Tribunal failed to consider my application.

   4. The Tribunal did not fully consider all the information provided for my application for a protection visa.

   5. The Tribunal failed to assess the chance of my persecution on my return to china.”

[Errors in original]

1. Given that the applicant was unrepresented before the Court, I also considered the grounds as a set out in the originating application to the Court:

   “1. The Tribunal relied upon irrelevant material.

   The ‘country informatic’ relied upon by the Tribunal was out of date and/or based on herarsay.

   2. The Tribunal had bias against me and could not consider my application in a fair way. The Tribunal failed to consider my claims.

   3. The Tribunal did not provide me adequate particulars of independent information

   4. The Tribunal did not provide me an adequate opportunity to respond the substance of the information.

   5. A  copy of the decision letter is attached.”

[Errors in original]

Before the Court

1. At the hearing before the Court, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Mr J Mitchell of Counsel appeared for the first respondent. The applicant has put no written submissions before the Court. The first respondent filed submissions, and supplementary written submissions (see [42] to [65] below).

2. At the hearing before the Court the applicant said that that she did not know what to say in support of her application, and that a “friend" assisted her in the drafting of her grounds before the Court. 

Consideration

1. Ground 1 in the amended application, and in the original application, asserts that the Tribunal relied on “irrelevant material,” which in the originating application is said to be “country informat[ion]” relied on by the Tribunal, which the application asserts was out of date and “based on [hearsay].”

2. The independent information relied on by the Tribunal related to the history and practice of Falun Gong (see CB 114), and the treatment of Falun Gong practitioners who come to the attention of Chinese authorities (CB 117.4). There is nothing before the Court to impugn the quality of the independent country information that was before it and on which it relied. It is not clear what the applicant means by “out of date” or “information based on hearsay.” The Tribunal has provided references to the independent country information in its decision record (see CB 118.3 to CB 113.10). Any plain reading of this material reveals its contemporary relevance, and documented sources. In any event, I note that the choice and use of independent country information is a matter for the Tribunal, as is the weight to be accorded to such information (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]).

3. In the absence of any further particulars, it is plain that the Tribunal’s decision was based on its evaluation of the applicant's evidence and information she provided, and country information. The matters considered by the Tribunal were relevant to the question it was required to address in conducting the review. That is, whether it could be satisfied that the applicant’s claims disclosed a well-founded fear of persecution for a Refugees Convention reason. I cannot see that the Tribunal considered “irrelevant matters” or materials in its lucid analysis.

4. Further, as the respondent submits, the onus of demonstrating an assertion to the contrary carries with it a heavy burden (see R v Australian Broadcasting Tribunal; ex parte 2HD [1979] HCA 62; (1980) 144 CLR 45 at [12] and McPhee v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 77 at 80.) What the applicant has put before this Court does not discharge this burden. This ground does not succeed.

5. The stated Ground 2 in the amended application contains a number of complaints. First, that the Tribunal failed to consider the application pursuant to s.91R of the Act. Beyond the mere assertion, there is nothing to say how the Tribunal failed in this regard.

6. Section 91R provides a qualification, for the purposes of the Act, on the meaning of “persecution” as derived from the Refugees Convention (in particular, Article 1A(2)). There is nothing in the material before the Court to show that the Tribunal misunderstood the importance, and relevance, nor the meaning of s.91R (see CB 99.3). Nor that it failed to consider the applican’s claims in a manner inconsistent with what is set out in s.91R. Without any particularity whatsoever, the applicant’s complaint appears to be no more than an assertion that the Tribunal did not find that the applicant had a wel-founded fear of persecution. As such, this complaint seeks impermissible merits review before this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).

7. Ground 2 in the amended application, and Ground 2 in the original application, also assert that the Tribunal was biased against the applicant. The applicant asserts that the Tribunal did not consider her application “in a fair way.” In the originating application, this is said to be because the Tribunal failed to consider her claims, and in the amended application it is said to be because the Tribunal did not consider the information provided by her in her reply to the Tribunal’s “section 424A” letter.

8. The evidence before the Court does not establish bias on the part of the Tribunal in the sense that it failed to bring an open mind to the proceedings. Nor, for that matter, that the well-informed lay observer would reasonably apprehend bias on the part of the Tribunal in such a way that it could be said, therefore, that the application was not considered “in a fair way” (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister Immigration Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102).

9. I cannot see that the Tribunal was focused other than on the relevant assessment as to whether the applicant had a well-founded fear of persecution for a Convention reason. That the Tribunal did not uncritically accept her claims, does not, on its own, establish bias. The Tribunal, of course, is not required to do so. (See Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437.)

10. The applicant has not put any evidence before the Court, for example, by way of a transcript of the hearing before the Tribunal to support her mere allegation of bias. It is, of course, a rare and exceptional case in which actual bias can be demonstrated simply from the reasons for the decision alone. (See SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38].)

11. The applicant’s complaint that the Tribunal did not consider her reply to its “section 424A” letter is, on any plain reading of the Tribunal’s reasons, simply not made out. The applicant’s short response to the Tribunal’s comprehensive “section 424A” letter was clearly considered by the Tribunal in its analysis and reasoning (see, in particular, CB 116.3 and CB 116.9). That the Tribunal remained unconvinced as to the applicant’s credibility after considering her explanations is, of course, a matter for the Tribunal as the relevant finder of fact, including findings on credibility (ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)).

12. In Ground 3 of the amended application the applicant complains that the Tribunal referred to “wrong information” in considering the application. No particulars whatsoever are provided to this complaint. If this is simply a restatement of what the applicant has previously complained, that is, that it was wrong of the Tribunal to rely on the country information on which it did rely, or that the country information to which it referred was “wrong” in what it asserted, this has already been dealt with above. The choice of country information is a matter for the Tribunal, and even errors in that material would not reveal jurisdictional error on the part of the Tribunal without something further. (See NAHI at [11] and VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [26] and [32].)

13. Ground 4 in the amended application (see also the “second” stated Ground 3) asserts that the Tribunal either failed to consider the application, or did not fully consider all the information provided by the applicant.

14. The first part of this complaint clearly, in all the circumstances, cannot be seen as anything more than a challenge to the Tribunal’s findings, and its conclusion that the applicant was not a person to whom Australia owed protection obligations. As already set out above the Tribunal made findings which were open to it on the material before it and for which it gave reasons. On this basis, the applicant’s complaint, which seeks to challenge the Tribunal’s factual findings, cannot succeed before this Court.

15. To the extent that the second part of this complaint suggests something more, that is, that the Tribunal did not consider each and every piece of information, or evidence, provided by the applicant, then as the respondent correctly submits the Tribunal was not required to make findings in respect of each piece of evidence before it (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 68, 73, 74 and 91 and Durairajasingham at [65], in particular).

1. What the Tribunal is required to do, is to consider each claim put forward by the applicant and each integer of these claims. There is nothing in the material before the Court to suggest that the Tribunal failed in this regard. Ultimately, the applicant was unsuccessful before the Tribunal because it found her not to be a credible or truthful witness. A finding for which it gave comprehensive reasons. This ground also does not succeed.

2. Ground 5 of the amended application asserts that the Tribunal failed to assess the chance of persecution if the applicant were to return to China.

3. I cannot see that the Tribunal failed in this regard. Plainly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. As already referred to above, this was open for the Tribunal to make, as it did, based on its view of whether the applicant’s claims to fear persecution were themselves well-founded and to determine the matter on the basis that it plainly did not accept the applicant’s claims and evidence in this regard (Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, particularly at 575-7). Having comprehensively examined each of the applicant’s claims, and having made findings that were open to it, the Tribunal found that Australia did not owe protections obligations to the applicant. I cannot see error in the Tribunal’s analysis in this regard. This ground also does not succeed.

4. In Ground 3 of the originating application, the applicant complains that the Tribunal did not provide her with “adequate particulars of country information.” The Tribunal did rely in part on independent country information available to it (see as referred to above). I understand the applicant’s complaint to be, at best, that the Tribunal should have put the details or particulars of that country information to her, for comment.

5. This is a case to which s.422B of the Act applies to make the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (of course, absent bias) (Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62, SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 237 ALR 64).

6. Relevantly, pursuant to its obligations under s.424A(1), the Tribunal is obliged to put to the applicant information which would be the reason or part of the reason for its decision. Such independent information, on which the Tribunal can be said to have relied (that is, information dealing with the doctrines and practices of Falun Gong and the PRC’s reaction to Falun Gong) is information that would fall within the exception contained within s.424A(3)(a) from the obligation in s.424A(1), in that it was non in personam information (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). This ground also does not succeed.

7. Ground 4 of the originating application complains that the Tribunal did not provide the applicant with an adequate opportunity to respond to the “substance of the information.” It is not clear whether the applicant seeks to complain about something other than the substance of the independent country information. If this is all that the applicant seeks to complain about, then such a complaint fails for the reason set out immediately above.

8. If the applicant however, seeks to assert something further then I can only note that following the hearing the Tribunal wrote to the applicant and put to her, and invited her comments on, information that the Tribunal said would be the reason, or part of the reason, for affirming the decision under review. The applicant was given the opportunity to respond in writing, an opportunity that she took up. I cannot see (particularly given the very detailed letter from the Tribunal) that she was denied “an adequate opportunity to respond.” This complaint also does not succeed.

9. Further in this regard, and noting in particular what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, there was plainly one determinative issue in this case. That was, the Tribunal did not find the applicant be a credible or truthful witness in relation to her claims, and another account setting out claimed past harm.

10. On the only evidence before the Court of what occurred at the hearing before the Tribunal, that is, the Tribunal’s own account, it is clear that the Tribunal squarely put the issue of the applicant’s credibility (in relation to her account) to her at the hearing, and gave her the opportunity to comment.

11. In this regard, see in particular:

    1)The Tribunal’s account at CB 104.4.

    2)Also see CB 107.3:

    “The Tribunal put to the applicant that it had great difficulty accepting she was a genuine Falun Gong practitioner when she couldn’t perform the fifth exercise. The applicant didn’t respond.”

    3)Further, at CB 107.5:

    “The Tribunal put to the applicant that given this independent information her claim that the police searched her home in October 2004 because they suspected she was practising Falun Gong yet did not take any action against her was implausible. The applicant didn’t respond.”

    4)Even further at CB 107.5:

    “The Tribunal put to the applicant it had difficulty accepting she was a Falun Gong practitioner when she did not appear to have an understanding of Falun Gong principles and practice. The Tribunal put to the applicant that the independent information before the Tribunal indicates that Falun Gong practitioners should be familiar with the five simple exercises and the energy experienced during the practice. The applicant did not respond.”

12. This ground also does not succeed.

Further Consideration

1. During the course of the hearing, Mr Mitchell fairly (given that the applicant was unrepresented before the Court) raised one possible issue that the Court should consider in light of SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 (“SZILQ”) at [32], SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100 (“SZHLM”) at [34], and NBKM v Minister for Immigration & Citizenship [2007] FCA 1413 (“NBKM”) at [32].

2. He directed the Court’s attention to the circumstances where this was a case which had been considered by an earlier constituted Tribunal which had conducted a hearing with the applicant. The subsequent decision was quashed by consent, and the matter remitted by the Court.

3. The differently constituted Tribunal (the Tribunal that made the decision currently before the Court) conducted a further hearing, and following that hearing, sent out a letter pursuant to s.424A. The issue being whether the Tribunal in light of the authorities referred to above, was required to hold a further hearing.

4. In SZHLM, a prior decision of a Tribunal (differently constituted) made following a hearing, had been set aside by the Court and the matter remitted to the Tribunal for redetermination. Upon remittal, the Tribunal sent two letters to the applicant, described by the Court in that case as “s 424A letters” to which the applicant in that case ultimately responded. The Tribunal did not provide the applicant with an opportunity for a second hearing. The Court held (at [32] to [34]) that because the Tribunal had, by its own letters requested additional information that had not previously been raised at the earlier Tribunal hearing (and in circumstances where no further hearing was held) that it was required by s.425 of the Act to invite the applicant to a second hearing (see in particular [32] to [34]).

5. In SZILQ the Court was presented with circumstances where, similarly, a Tribunal decision (as earlier constituted) was quashed by the Court and the matter remitted for redetermination, and a differently constituted Tribunal made an assessment of the applicant’s credit without the applicant appearing before it. This assessment was based on an issue that had not been raised with the applicant at the Tribunal hearing (in that case it was his motivation for attending Christian Church services).

6. The issue in the present case, therefore, is whether, in light of those authorities, the applicant should have been invited to a further hearing before the Tribunal. That is, a further hearing after the hearing conducted on 10 August 2006 (by the Tribunal member who made the decision currently before the Court) given that the applicant was sent a “s 424A letter” subsequent to the hearing.

7. First, I should note that with reference to  NBKM (see in particular [25] to [27]), the mere fact that following remittal a Tribunal sends an applicant a “s 424A letter” does not of itself enliven an obligation to give a second hearing.

8. As I understand it, the relevant question is whether or not at the time of the Tribunal (as reconstituted) coming to make its decision, there are any new “issues arising in relation to the decision under review” (with reference to the obligation s.425 of the Act). In NBKM, upon remittal, the Tribunal sent the applicant a “s 424A letter,” but did not give the applicant a second hearing. In that case, Siopis J said (at [30] to [32]):

   “30.  In this case, the ambit of the potential issues before the Tribunal as originally constituted was defined by claims made by the appellants, as contained in the materials which were provided to the Tribunal immediately prior to the first hearing, and the evidence given at the first hearing. As previously mentioned, in July 2006, after the first decision was set aside and the matter was remitted to the Tribunal, the Tribunal wrote to the appellants inviting the appellants to comment upon nine items of information. These items arose from the content of the claims which had been before the Tribunal when it made its first decision. The letter also invited the appellants to submit any further evidence or submissions they wished the Tribunal to consider.

   31. The appellants responded through their migration agent by commenting upon the items raised in the Tribunal’s letter, but they offered no further evidence or submissions …

   32. In my view, therefore, there was no information provided to the reconstituted Tribunal which amplified the appellants’ claims. There was, therefore, no material change in circumstance which had the potential to expand the scope of the relevant issues beyond those the subject of the first hearing and the first decision. As the appellants had already had the opportunity to provide evidence and make oral submissions as to those issues at the first hearing, the appellants were not, in the circumstances of this case, deprived of their rights under s 425.”

9. I comprehend that a similar approach was taken in SZJHL v Minister for Immigration & Citizenship [2007] FCA 1713 (“SZJHL”). Again a case where upon remittal, the Tribunal sent a “s 424A letter,” but did not afford the applicant a second hearing. In SZJHL Finn J said (at [16]):

   “16. It was, in my view, perfectly plain – and should have been such to the appellant – that the entirety of his claims and his credibility generally were in issue in the review. Against this background it cannot properly be said that any further inconsistencies exposed in his s 424A answers relating to his claims or any greater doubts his answers engendered about his credibility raised new or unexpected issues for which, in fairness, a further opportunity for comment ought to have been provided.”

10. Plainly, given SZBEL, the Tribunal’s obligations under s.425 were to discuss matters which give rise to the determinative issues in the disposition of the application with the applicant at the hearing. However, SZBEL does not require, or oblige the Tribunal, to put to the applicant obvious appraisals of her evidence, or to give a running commentary on her evidence (see SZBEL at [38] and [48]).

11. In the case currently before the Court, as stated above, the determinative issue which was ultimately dispositive of the application was the applicant’s credibility in relation to her claim to have been a Falun Gong practitioner in China, and to have been harmed in China because of her activities and to have practiced Falun Gong since her arrival in Australia.

12. The issue of the credibility of the applicant’s claims, as already referred to above, was squarely raised with the applicant at the hearing. Further, the substratum of facts giving rise to the adverse credibility finding (that is, the various matters, to which the Tribunal ultimately referred in basing its adverse credibility findings) were also discussed with the applicant at the hearing. Given that the plausibility of her various accounts relating to her claims were an issue before the previously constituted Tribunal (see for example, CB 67.4) what the applicant was told by the Tribunal at the second hearing plainly would have left her in no doubt that the credibility of her claims was at issue. The determinative issue, being her credibility and the plausibility of her claim to have been a Falun Gong practitioner, was plainly put to her at the hearing.

13. This is not a situation, as was before the Court in SZILQ, where an adverse credibility finding was made based on any issue that had not been raised at a Tribunal hearing. I note further in this regard, that NBKM and SZJHL provide authority that in similar circumstances, there is no obligation for any further hearing.

14. Also, the circumstances in the present case can be distinguished from what was before the Court in SZHLM. In SZHLM the Tribunal invited the applicant, on two occasions, to comment on information that formed part of the reason for the decision. In SZHLM, this information had not been previously raised at the Tribunal hearing, and clearly no further hearing was held. This was information regarding a change of circumstance in the country of claimed persecution.

15. This can be distinguished from the present case in that the Tribunal’s letter was plainly not a request for information. It was, as Mr Mitchell in my view correctly submits, an attempt by the Tribunal to comply with what it believed to be its procedural obligations under s.424A(1). What can be said to be the determinative issue arising from the information referred to in the section 424A letter, had plainly already been discussed with the applicant at the Tribunal hearing and the applicant had an opportunity to respond to the Tribunal’s concerns regarding her credibility at the hearing (see in particular CB 104 to CB 107).

16. Further, I cannot see that simply by sending the section 424A letter that a hearing must be provided. In SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, (2005) 215 ALR 162 at [55] to [63], [159] to [160], [164] and [185] (see also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26) the majority of the Court held that ss.424A(1) and 425 do not have a “sequential” operation. The Tribunal is permitted to send a letter pursuant to s.424A(1) without holding a further hearing in respect of the information which is referred to in that letter (see NBKM at [32] and SZGBT v Minister for Immigration & Citizenship [2007] FCA 565 at [25]).

17. I should just note further that to the extent that the currently constituted Tribunal relied on what was said to have been put before the previously constituted Tribunal at the hearing before it, that this evidence was information provided by the applicant to the Tribunal for the purposes of the review (see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [39], SZJBE v Minister for Immigration & Citizenship [2007] FCA 190 at [19], SZGYV v Minister for Immigration & Multicultural Affairs [2007] FCA 1313 at [5].

18. In SZEPZ at [39]

    “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.”

19. I understand the reasoning in SZEPZ, when applied to the circumstances before the Court now, to provide authority for the proposition that a Tribunal decision which has been set aside (“no decision at all”), does not mean that any hearing pursuant to s.425 which had been conducted by the earlier constituted Tribunal is invalid, and leads to an obligation on the reconstituted Tribunal to afford a hearing as if the first hearing had not taken place.

20. I comprehend, with respect, NBKM and SZJHL to be consistent with SZEPZ on this issue to the extent that there is no obligation for a “new” hearing unless there emerges some “new issue” in the sense encompassed by the obligation in s.425 which obliges the Tribunal to invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Plainly, if the issues arising in relation to the delegate’s decision have already been the subject of a hearing, then NBKM and SZJHL do not contemplate an additional hearing being required.

21. In all, therefore, I understand that the relevant authorities provide that the only aspect of a “invalid Tribunal decision” that is “inoperative” is the decision itself, and further, the mere fact of such an inoperative decision, does not mean that any hearing that had been previously afforded to the applicant is invalid and needs to be provided again. What I draw from the relevant authorities, and directly relevant to this case, is that once a Tribunal has conducted a hearing and the determinative issues have been raised at that hearing, and the applicant has been given an opportunity to respond at that hearing, then no additional hearing pursuant to s.425 is required. For such an obligation to arise, a new issue would need to emerge in the sense contemplated by s.425.

22. In all the circumstances of the case currently before the Court following remittal of the applicant’s matter to the Tribunal, the “second” Tribunal conducted a hearing with the applicant where the issue “arising in relation to the decision under review” was discussed. There was no error in the Tribunal subsequently sending a “s 424A letter.” I cannot see in the circumstances of this case that any new, or additional, issue arose by the Tribunal sending its “s 424A letter.” As such, the Tribunal fully complied with its obligation pursuant to s.425. This issue does not assist the applicant in showing error on the part of the Tribunal.

Conclusion

1. For the applicant to succeed in this application, the Court would need to discern jurisdictional error on the part of the Tribunal. As I cannot discern such error based on any of the grounds in the original application, nor in the amended application, nor otherwise, this application is therefore dismissed.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  20 June 2008