SZJSH v Minister for Immigration
[2008] FMCA 1715
•24 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1715 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – information obtained by Tribunal from China through Australian Consulate General – whether failure to comply with s.424, s.424A or s.425 of the Migration Act. |
| Acts Interpretation Act 1901 (Cth), s.22 Migration Act 1958 (Cth), ss.65, 91R, 422, 422B, 424, 424AA, 424A, 424B, 425, 427, 441A Privacy Act 1988 (Cth) |
| Abbasi v Minister for Immigration and Multicultural Affairs [2001] FCA 1274 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 SZJZB v Minister for Immigration and Citizenship [2008] FCA 1731 SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236 |
| Applicant: | SZJSH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3396 of 2006 |
| Judgment of: | Barnes FM |
| Hearing dates: | 27 February 2008 & 19 June 2008 |
| Last Date for Submissions: | 25 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 December 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That a writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the Refugee Review Tribunal signed on 6 October 2006 in matter No. 060563540.
That a writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 17 June 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3396 of 2006
| SZJSH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a review of a decision of the Refugee Review Tribunal handed down on 19 October 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in February 2006 and applied for a protection visa. He claimed to fear persecution as a Christian. He claimed that his parents were Christians, that he was baptised at birth and used to attend the official local church. He was “introduced to a house church” in May 2002. The applicant claimed that in January 2003 the police broke into their leader’s home where he was attending a gathering, destroyed all their religious materials, "registered" them and warned them that if they continued to gather they would be put in gaol. The leader was detained for two days and mistreated and was arrested again after six months. His whereabouts were not known.
The applicant claimed that they kept engaging in religious activities at different places, but were “more careful.” The Chinese government increased control over religious activity in September 2004, requiring registration with official religious organisations. The applicant claimed that in October 2004 the police broke into his home where they were holding a “Christian congregation” and accused them of having an “illegal evil religious gathering”. He claimed that bibles, books and disks relating to Christian teaching were confiscated and that “all brothers and sisters” were taken to the Public Security Bureau. The applicant claimed that he was detained, beaten and forced to sign a prepared statement promising never to have another house gathering. After two days his parents paid a fine and he was released.
The applicant claimed that he pretended to stop his religious activities, but actually became more careful and continued to study the Bible and gather with a small group. He claimed that he came to Australia because he had been persecuted for his religious activities and wanted to “live a peaceful Christian life”.
The application was refused by a delegate of the first respondent who found on the basis of country information that the applicant was able to practise as a Christian in China and that the fact that he could leave China legally on his own passport indicated that he was not of interest to the security authorities at the time of his departure.
The applicant sought review by application lodged with the Tribunal on 30 June 2006. He provided the Tribunal with a copy of the statement provided in support of his protection visa application. He attended a Tribunal hearing on 9 August 2006. His adviser provided the Tribunal with information about the situation in China.
After the hearing the applicant's adviser wrote to the Tribunal providing a statement of support dated 17 September 2006 from a Minister of a Christian Congregational Church in Australia. The statement was not in the Court Book but was tendered by the first respondent. It stated that the applicant had been “regularly worshiping” at that Church.
On 21 September 2006 the Tribunal wrote to the applicant under s.424A of the Migration Act, 1958 (Cth) seeking his comment on information that: “The Guangdong Public Security Bureau has confirmed to the Australian Embassy that the photo in the passport on which you traveled (sic) to Australia does not match their record of the photo in the original passport application.” There was no material in the Court Book to indicate how the Tribunal obtained this information except that in its reasons for decision the Tribunal recorded that the cover page of applicant’s passport and the photo which had accompanied the original visitor visa application had been scanned and the result sent to the Australian Consulate General in Guangzhou and that the Consulate General’s report had resulted in the s.424A letter being sent to the applicant.
The Tribunal put to the applicant that given this information it would appear that he was “not the rightful passport holder” and that this may cause the Tribunal to conclude that he was not truthful and not who he claimed to be and that it may be the reason, or part of the reason, for the Tribunal deciding that he was not entitled to protection.
In response, the applicant’s adviser provided information about coincidences involving people with the same names and dates of birth and a statement from the applicant claiming that he could not contact the person who had obtained the passport and visa for him, that another person who used to work at the travel agency could not remember many of the case details and guessed this might have been a mistake or because the applicant had “paid a lot of money and chased them too often”.
Tribunal decision
In its reasons for decision the Tribunal outlined the claims made by the applicant, the evidence given at the Tribunal hearing and the s.424A letter and response. Its account of the hearing (which the hearing record indicated went from 10.05am to midday) was as follows:
At hearing, I asked the applicant to confirm when and where he was born. He replied with the data contained in his passport, which was before me at hearing. I told him that I had his original visitor visa application and that the photo submitted did not correspond to the photo in his passport and did not look like him. In addition, the employment shown in the application was different to what he claimed. He was not able to explain these matters.
I asked him some simple questions about Christianity, which he was able to answer. I also asked him if he practised in Australia. He said he did and indicated where. I asked him about his practice in China; his answers were vague and not convincing.
The applicant described his experiences in similar terms to those in the statement contained in his primary application, which he had re-submitted to the Tribunal.
Not all his answers to my questions were consistent. For example, I asked him – and he answered in the affirmative – whether he had worked for the one employer between 1992 and 2006. He said that this his arrests did not affect his employment because the company for which he worked was a joint venture with an overseas company. However, later, when I asked him what had happened to him between his release in October 2004 and his departure for Australia, he said that he had been scared and had done some small scale things. His account of his obtaining a passport and visa was somewhat confused.
In its findings and reasons the Tribunal found that the applicant had “made it very difficult to reach the required level of satisfaction that he is entitled to protection in Australia. On the basis of the information received in response to the Tribunal’s inquiries, I conclude that the applicant is not the person he claims to be and that he has travelled to Australia on a stolen (or in some other way improperly acquired) passport with the photo substituted.”
The Tribunal found that the applicant's reply to its s.424A letter was “entirely inadequate”. It observed that in his response to the s.424A letter the applicant had referred to the issue raised at the hearing about the fact that the photographs in his visa application and passport did not match (although other dates at to name, date and place of birth, passport number and national identity card did match). The Tribunal acknowledged that it was this “conflict” which had prompted it to make inquiries in China, with the result that it was informed “that the photo recorded by the Chinese authorities as belonging to the bearer of the passport did not correspond to the photo now in the passport” the applicant had provided to the Tribunal. The Tribunal found that it was “clear” that the photograph had been “substituted”. While it accepted that there were people in China with identical names and dates of birth, it stated that this was not the issue. It found that while the applicant may bear the name he claimed, he was clearly “not the [person of that name] who applied for that passport.” It found that his explanation of his attempts to obtain information about the circumstances in which he obtained his passport (which it referred to as “the telephone odyssey he describes”) was not such as to “enlighten” it.
The Tribunal continued:
If his description of his religious observance in China had been more convincing, I might have been prepared to accept that he was a practising Christian in China, despite my doubts about his credibility as a whole. However, while I acknowledge that he has attended a Christian church in Australia and has some knowledge of Christianity, the fact that I do not know who he is leaves me unsatisfied as to what his situation was in China. There are many Christians in China and, although there are problems from time to time, merely being Christian does not give rise to a well founded fear of persecution.
In addition, the fact that he worked for one employer until he left for Australia strongly suggests that he was not of any interest to the Chinese authorities. His explanation – that his employer was a joint venture – I do not accept. If he had no employment problems it was because there were no grounds for any problems. Had he been arrested and detained on more than one occasion, it would have had consequences for his employment.
The fact that he remained in China for 2 years after his claimed second arrest also indicates to me that he did not have a fear of persecution. I do not accept his explanations for the delay in leaving, which lack credibility.
Therefore the Tribunal did not accept the applicant's claims to have been arrested for reason of his religious activity or that there was a real chance that he would be arrested or suffer any other form of persecution for this reason or for any other Convention reason on his return.
The Tribunal considered the consequences of the fact that the Guangzhou PSB now had a copy of the applicant's photograph and would “probably have concluded that the passport on which he travelled was altered and is not his”. The Tribunal stated that the PSB was not given the applicant’s real name by the Consulate General as no Australian authority knew what it was. The Tribunal acknowledged that if the Chinese authorities were able to match the photograph with the name, the applicant may be charged after return to China with offences connected with his documentation. However, the Tribunal found that tampering with a passport and travelling on a passport to which one was not entitled was unlawful in many countries (including Australia) and that there was no evidence that people in China charged with offences of this kind were “treated in a discriminatory manner or that their treatment in any other way gives rise to a real chance of persecution for a Convention reason”. The Tribunal concluded that the applicant did not have a well-founded fear of persecution in China for reason of his religion or for any other Convention reason.
Application for review
The applicant sought review by application filed in this Court on 20 November 2006. Somewhat confusingly, he filed an amended application on 27 March 2007 which appears to have been signed by a solicitor (although the applicant is self-represented) and another on 29 March 2007 which sought to “amend” the original grounds of review. I have considered the grounds in each of the applications as well as those that arose on the material before the Court on which the parties had the opportunity to make submissions.
Section 424A and the grounds in the original application
It is convenient to consider first the various contentions made and issues arising in relation to s.424A of the Migration Act 1958 (Cth) which in the form it was in at the time of the Tribunal review in issue required the Tribunal to give the applicant written particulars of information it considered would be the reason or part of the reason for affirming the decision under review.
The generally expressed and unparticularised ground in the original application that procedures “required by law to be observed … were not observed” does not, as pleaded, establish jurisdictional error. The ground that that the Tribunal “did not comply with its obligations under s 422, s 424A and s 424B” of the Migration Act 1958 (Cth) “in respect of the above-mentioned information” is unclear. There is no other reference to “information” in the application except for a suggestion that the Tribunal only considered the “evidence” not in favour of the applicant. The Tribunal’s consideration of the weight to be given to evidence before it, in the sense of its subjective appraisals and thought-processes, does not establish a breach of s.424A of the Migration Act 1958 (Cth) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190). Beyond this ss.424A and 424B are discussed further below. Section 422 relates to reconstitution of the Tribunal where a member is unavailable and is not applicable. Other issues arising in relation to the procedural requirements in Division 4 of Part 7 of the Act are discussed below.
Section 424A, procedural fairness and independent country information
The first ground in the amended application filed on 27 March 2007 is that the Tribunal failed to comply with s.424A and acted in breach of the rules of procedural fairness “by failing to put to the Applicant for comment the independent country information on which it impliedly relied in making its determination.”
The first particular to this ground refers to the Tribunal finding that there were many Christians in China and that although there were “problems from time to time, merely being Christian does not give rise to a well-founded fear of persecution.” It was contended that in making this finding the Tribunal “took into account country information adverse to the Applicant regarding the situation for Christians in China and the treatment of Christians by the Chinese authorities” not referred to in its decision and that it erred in that it did not provide copies of such information to the applicant, put the information to him or provide him with a proper opportunity to respond.
While the Tribunal did not refer expressly to particular items of country information, the findings it made in this respect were open to it on the country information referred to in the delegate’s decision (which it stated it had taken into account). As such, the relevance of this information (and the delegate’s conclusion based on that information that the applicant was able to practise as a Christian in China) was made known to the applicant as an issue arising in relation to the decision under review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). No lack of procedural fairness or breach of s.425 is established on this basis. (See Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572). Country information of this nature is within the exception to s.424A(1) in s.424A(3)(a). Hence no breach of s.424A is established.
The second particular takes issue with the Tribunal’s finding about the absence of evidence before it that people charged with passport offences were treated in a discriminatory manner in China. It was submitted that in making this finding the Tribunal had before it and took into account specific “evidence” and country information adverse to the applicant regarding the legal system in China, the particular criminal charges to which he could be subject and the modus operandi of the PSB in Guangzhou Province not identified in the Tribunal decision and not put to the applicant for comment.
However the Tribunal finding in question was as follows:
I have considered the consequences of the fact that the Guangzhou PSB now have a copy of his photo and will probably have concluded that the passport on which he travelled was altered and is not his. They were not given his real name by the Consulate-General, since no Australian authority knows what it is. However, if the Chinese authorities are able to match the photo with a name, the applicant may be charged after return to China with offences connected with his documentation. However, tampering with a passport and travelling on a passport to which one is not entitled are unlawful in many countries, including Australia. There is no evidence before the Tribunal that the treatment of people charged in China with offences of this kind are treated in a discriminatory manner or that their treatment in any other way gives rise to a real chance of persecution for a Convention reason.
Rather than being based on specific “evidence” and country information adverse to the applicant, this finding was expressed to be based on a lack of evidence before the Tribunal. A “gap” or absence of evidence is not “information” within s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]). In any event, if the Tribunal had relied on country information in making this finding such country information would also be within the s.424A(3)(a) exception to the s.424A(1) obligation.
In relation to both of these particulars, while the applicant contended that the presence of a provision such as s.424A does not, of itself, preclude the continued existence of the common law requirements of natural justice (see Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 and SZAGF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 82 ALD 364), that must now be seen in light of s.422B of the Act (see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62). This ground is not made out.
Section 424A, Tribunal action and possible sur place claim
The second ground in the amended application of 27 March 2007 is as follows:
The Tribunal acted in breach of section 424A of the Migration Act 1958 and in breach of the rules of procedural fairness and/or natural justice by failing to put to the Applicant for comment the fact that he could face criminal charges or other mistreatment by the Chinese authorities as a direct consequence of action taken by the Tribunal and/or the Australian Consulate General in giving to the Guangzhou (or ?Guangdong) Public Security Bureau (PSB) scanned copies of the cover page of the applicant’s passport and the photograph attached to his original visa application. While the Tribunal purported to consider the ‘consequences’ of its own actions it failed to give the Applicant an opportunity to comment on the consequences if he were to come to the attention of the Chinese authorities on his return to China. The considerations identified by the Tribunal for itself are of a generalised nature, and do not reflect the entirety of the Applicant's circumstances. The Tribunal has not turned its mind to the possibility that if the Applicant was in fact a practising Christian in China, is accused on return of passport offences, and is known (or assumed) to have applied for refugee status in Australia, the combination of these factors could lead to a serious and disproportionate response by the authorities. In effect, the actions by the Tribunal and the Australian authorities in China have given rise to a possible sur place claim to refugee status which has not been considered by the Tribunal and in respect of which the Applicant has had no opportunity to put his case.
In this regard it is noted that the Department’s (sic) ‘section 424A letter’ to the Applicant (see ‘Further evidence’ at page 110 of the Green Book) seeks a response to the advice from the PSB to the effect that he was not the ‘rightful passport holder.’ It does not address the more significant matter arising from the actions of the Australian authorities in making it almost inevitable that the Applicant will come to the attention of the authorities. It is common practice for the Department of Immigration to allow failed applicants for refugee status to return home on ‘fraudulent’ or ‘false’ passports that are not their own, and if that occurs then the Applicant will certainly come to the attention of the authorities. The Tribunal’s comment that this may not occur because the Chinese authorities were not given his ‘real name’ is irrelevant and ill-conceived, as is the suggestion that only if the authorities ‘match the photo with a name’ is the Applicant likely to come to their attention. These findings ignore the fact that, as a result of information provided by the Australian authorities, the Chinese authorities have identified the Applicant’s passport as fraudulent and will have recorded that fact in their computerised entry systems. That will be sufficient to bring the Applicant before the authorities, in which case he may face a real chance of persecution on the basis of circumstances not considered by the Tribunal and in addition to the claims based on his religion. As a consequence the decision of the Tribunal is affected by jurisdictional error.
This ground raises two issues: first whether the Tribunal failed to consider a sur place claim that arose on the material before it and secondly whether there was a breach by the Tribunal of s.424A or any of the other provisions in Part 4 of Division 7 of the Act in relation to the information it obtained from and through the Consulate General in China. This ground was not addressed by the applicant in submissions.
It was contended for the first respondent that the s.424A of 21 September 2006 letter put to the applicant for comment of the fact that the PRC authorities had been consulted in relation to the fact that his passport photograph did not match the photograph in the passport application and that hence he was on notice about the facts that might give rise to a “sur place” claim and had an opportunity to comment on this information. It was pointed out that the applicant had not raised this as a potential problem in his response to the Tribunal and contended that he had the obligation to make out his case in this respect.
While the s.424A letter did inform the applicant that the PSB was aware of the difference between the passport photographs, his failure to suggest in response to that letter that these circumstances gave rise to a sur place claim (when the comment sought by the Tribunal in the s.424A letter related to his identity and honesty) does not mean that the Tribunal was not required to consider the implications of the fact that the PRC authorities now knew that the person who travelled on the passport in question may have committed a passport offence as such a claim arose “squarely” on the material before it (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1).
However, the Tribunal did consider the consequences of the fact that the Guangzhou PSB had a copy of the applicant’s photograph and would probably have concluded that the passport on which he travelled was altered and was not his passport. Putting aside the fact that the Tribunal seemed to imply that the authorities could not identify the applicant as they were not given his real name by the Consulate General (which fails to take into account the possibility that he may return to China on the passport on which he had previously travelled but does not demonstrate jurisdictional error), the Tribunal did consider the possibility that the applicant may be charged after his return to China with offences connected with his documentation.
In order to come within the Refugees Convention persecution must be “for reason of” one of the five Convention grounds. In Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1996-1997) 190 CLR 225 Brennan CJ (at 233) considered that this excluded “punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of a ‘refugee’”. As Dawson J stated (at 240) “The words ‘for reasons of’ require a causal nexus between actual or perceived membership of a particular social group and the well-founded fear of persecution. It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person’s membership or perceived membership of the particular social group.” McHugh J clarified (at 257) that “When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group.”
Relevantly, McHugh J also pointed out (at 258 – 259) that the enforcement of generally-applicable criminal laws or of laws designed to protect the general welfare of the State does not “ordinarily” constitute persecution (unless its real object is oppression of those who come within one of the five Convention grounds) although, as Gleeson CJ, Gummow and Kirby JJ stated in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [42] “A law of general application is capable of being implemented or enforced in a discriminatory manner”.
The Tribunal in this instance found no evidence of discriminatory treatment of those charged with passport offences in China. Implicit in this finding is the inference that there was no evidence that any penalty for passport offences imposed particular sanctions on persons for a Convention reason (such as religion). The Tribunal was clearly of the view that the PRC government could legitimately investigate and punish passport offences by its citizens (as arising under laws of general application which were not discriminatory) and that there was no evidence that the applicant would be treated differently by the authorities or subjected to serious harm amounting to persecution for a Convention reason because he left the country illegally (see NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 287). Hence the Tribunal addressed such a possible claim in so far as it arose on the material before it.
The applicant submitted in the amended application that he had not had an opportunity to “put his case” in relation to this issue. It was contended that the Tribunal should have put to him for comment the fact that he could face “criminal charges or mistreatment” by the Chinese authorities as a direct consequence of action taken by the Tribunal and/or the Australian Consulate General in giving to the Guangzhou PSB scanned copies of the cover page of the applicant’s passport and the photo attached to his original visa application, so that he could comment on the consequences if he were to come to the attention of the Chinese authorities on his return to China.
As the first respondent submitted, s.424A was not breached in relation to this issue because there was no “information” underlying the Tribunal’s consideration of this issue that formed part or would form part of the Tribunal’s reasoning (see SZBYR at [18]), beyond the PSB’s confirmation that the photo in the passport on which the applicant travelled to Australia did not match their record of the photo in the original passport application. This was put to the applicant under s.424A. The Tribunal’s rejection of the proposition that the applicant would be persecuted within the meaning of the Convention by reason of any difficulties he encountered in connection with the possibility of facing passport tampering charges was a legal conclusion. The Tribunal’s reasoning in this respect and conclusion that the applicant did not have a well-founded fear of persecution on this basis was clearly outside s.424A(1) (see SZBYR at [18]).
The fact that the applicant could face offences connected with his documentation because the possibility of passport tampering had, in effect, been made known to the PRC authorities as a result of the Tribunal’s inquiries, was not information that would be the reason or part of the reason for affirming the decision under review. It did not constitute a “rejection, denial or undermining” (SZBYR at [17]) of the applicant’s claim to be a person to whom Australia owed protection obligations. Nor was the Tribunal obliged to put to the applicant under s.424A that there was no evidence of discriminatory treatment of people charged with passport offences (SZBYR at [18]).
The s.424A letter alerted the applicant to the knowledge of the PSB. The relevance of that information was said to be limited to the Tribunal’s credibility concerns, in that it may cause it to conclude that the applicant was not the person he claimed to be and also (although the Tribunal did not explain why) may be the reason or part of the reason for the Tribunal deciding the applicant was not entitled to protection. However, given that the applicant was made aware of the PSB’s knowledge, it was open to him (had he wished to claim that these facts gave rise to a Convention-based fear of persecution) to raise such concern with the Tribunal, whether in his response to the s.424A letter or otherwise. He did not do so. Nonetheless the Tribunal considered this possibility. No breach of s.424A is established on the basis contended for in ground two of the amended application filed on 27 March 2007.
A broader concern is expressed in relation to the fact that at no time was the applicant invited to comment on whether there were possible Refugees Convention implications for him arising from the PRC authorities’ awareness (because of the actions of or on behalf of the Tribunal) that the photo in the passport on which he travelled did not match that in the passport application. The applicant claimed generally that there was a lack of procedural fairness in the Tribunal’s failure to put to him for comment the fact that he could face criminal charges or mistreatment by the Chinese authorities as a result of the action of the Tribunal and/or the Consulate. However the applicant was informed of the essential facts consisting of the information from the PSB. It was for him to make out any claim to have a well-founded fear of persecution for a Convention reason on that basis beyond that arising on the material before the Tribunal (for example, based on the combination of his Christianity, possible passport offence and the fact that it may be known that he was a protection visa applicant, as is now suggested in the amended application). He did not do so. It is not necessary to consider what would have been the position had the Tribunal failed to inform him of the PSB’s advice. Had that been the case there would have been force in the applicant’s fairness concerns.
In so far as the applicant may be seen as contending that the Tribunal fell into jurisdictional error by disclosing identifying information to the PSB I note the rejection of the suggestion that compliance with the provisions of the Privacy Act 1988 (Cth) was a prerequisite to the making of a valid decision by the Tribunal in SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 at [32] (and see Goldie v Commonwealth of Australia (2000) 180 ALR 609 per French J at [85] – [87] and Abbasi v Minister for Immigration and Multicultural Affairs [2001] FCA 1274 per Beaumont J at [67]). This ground is not made out.
Section 424A and information obtained as a result of Tribunal inquiries
The applicant is self-represented in these proceedings. It became apparent during the course of the hearing that other issues under s.424A and also s.424 may be raised by the manner in which the Tribunal obtained and used information from the Consulate General in Guangzhou and the PSB. Consideration of these issues was hindered by the absence from the Court Book of any documentation in relation to the Tribunal’s request for information and the response from China, other than what appeared in its s.424A letter and reasons for decision.
At the request of the Court, the solicitors for the first respondent filed further evidence consisting of affidavits sworn by Megan Louise Palmer on 29 July 2008, 31 July 2008 and 1 August 2008 annexing relevant material from Departmental and Tribunal files relating to the applicant, including copies of the photographs attached to the applicant’s passport and his business visa application, emails between the Tribunal member, the Department of Immigration and the Australian Consulate General in Guangzhou between 1 September 2006 and 21 September 2006 relating to the applicant and also a Chinese language request (and translation) from the visa office of the Australian Consulate General in Guangzhou to the Entry – Exit Administration Division of the Guangdong PSB seeking confirmation of the content and photo of the passport on which the applicant travelled to Australia.
According to the Tribunal, it was its observation that the photographs in the passport and visa application did not match (a matter discussed with the applicant at the Tribunal hearing of 9 August 2006) and the fact that the employment shown in the business visa application was different from that which the applicant claimed in the protection visa application that precipitated these post-hearing inquiries.
It appears from this material that the Tribunal sent an email request to the RRT Liaison Unit in the Department of Immigration in Australia on 1 September 2006 (re-sent on 5 September 2006 after a “discussion” apparently about whether an attachment would open) stating that the applicant had arrived in Australia travelling on a passport in the name given, which contained a business visa issued in Guangzhou, that the Tribunal had obtained the original business visa application and that it contained a photo of the applicant which did not match the photo submitted with the protection visa application. The email advised that the passport submitted at the time of the hearing had the same number as that of the business visa applicant but a different photo. It also stated that the business card attached to the business visa application showed a different employer to that claimed in the protection visa application. Copies of these documents were attached and the Tribunal asked that the Department of Immigration be asked to investigate in Guangzhou and advise.
The Liaison Unit forwarded the request to the Australian Consulate General in Guangzhou by email. On 13 September 2006 a compliance manager responded: “We have sent a referral to GD PSB requesting verification of the passport photo” and advised that if the “client” did not match the original application photo then the passport which was used for visa evidencing had been photo-substituted and the “client” was not the rightful passport holder. The email stated “This is what we are wanting to verify with the PSB”. The manager asked whether the applicant claimed that his identity was the same as in the passport. This information was forwarded to the Tribunal by email.
The Tribunal responded by email of 14 September 2006 forwarded to the Consulate General by the Liaison Unit. The Tribunal provided details of the business visa application, advised that while the photo in the visa application did not match that in the passport, other personal details did match. It asked if photo-substitution was possible, whether the organisation identified in the business visa application existed and if a person bearing the name of the visa applicant was the sales manager as claimed. The officer at the Consulate General suggested that internet credit checks and telephone checks could be carried out and sought scanned copies of all relevant documents about the applicant’s employment from the Departmental file. These documents were provided.
On 19 September 2006 a compliance assistant in the Consulate General emailed another officer as follows: “GD PSB replied on phone the photo we emailed to them does NOT match their records. They would like to make an appointment with us next Monday or Tuesday for a follow up – they would like to conduct a further investigation about this case”.
Another internal email of 20 September 2006 advised that checks had been done in relation to the applicant’s employment, that internet credit checks indicated the declared company was legitimate, but that the declared company, telephone number and fax number were not registered with local directory assistance and the declared telephone number had been deregistered in March 2006. Information was also provided about telephone number registration and deregistration procedures in Guangzhou. These emails were sent to the Liaison Unit on 21 September 2006 by the Compliance Manager with advice that it was possible to substitute a passport holder’s photo. It was explained how this could be done. The advice stated that the Guangzhou office had recorded approximately 24 occurrences of photo-substituted PRC passports in “our Caseload Fraud data, and 12 occurrences in our Protection Visa data” so far that year. The advice added that “Guangdong PSB (Public Security Bureau) has also confirmed that the photo you provided from the passport does not match their record of the original passport application”. It was suggested that given this information it was “obvious that the person onshore is not the rightful passport holder”. In response the Tribunal advised that no further action was required in light of the fact that the applicant was not who he claimed to be.
The parties were given the opportunity to make written submissions in relation to issues arising from this information. The first respondent did so. The applicant did not. It subsequently emerged that the affidavits filed by the first respondent and written submissions may not have been sent to the correct address for the applicant. To ensure that he had the opportunity to address this material further copies were sent to the address for service and residential address provided on the last document filed by him. The time for filing submissions was extended. However the applicant did not file any written submissions in relation to this material.
The first respondent’s submissions address the application of s.424A to this material, issues in relation to ss.424 and 424B and discretionary considerations were there to be a breach of s.424 or s.424B.
Section 424A, the business visa application and information obtained from the Consulate General
A transcript of the Tribunal hearing of 9 August 2006 is before the Court. As the Tribunal recorded in its reasons for decision, in the hearing it told the applicant that the photograph in the application for the business visa on which he came to Australia did not match the photograph in the passport he produced to the Tribunal and did not look like him and that the employment shown in the application was different from that which he claimed. It recorded that he was not able to explain these matters. The Tribunal also told the applicant that it had “asked for” the visa application which was shown to the applicant and that “it was sent from China” (transcript page 6).
In the findings and reasons part of its decision the Tribunal did not expressly refer to these issues. However it stated: “In this case, the applicant has made it very difficult to reach the required level of satisfaction that he is entitled to protection in Australia. On the basis of the information received in response to the Tribunal enquiries, I conclude that the applicant is not the person he claims to be and that he has travelled to Australia on a stolen (or in some other way improperly acquired) passport with the photo substituted”. (Emphasis added).
The Tribunal referred to the s.424A letter but found the applicant’s response to that letter about the difference between the two passport photographs to be “entirely inadequate”. It recorded that the applicant had referred to the problem raised at the hearing about the difference between the photographs in the business visa application and passport. It stated that it was “this conflict” which had prompted it to make inquiries in China, referred to the information that the photo recorded by the Chinese authorities as belonging to the bearer of the passport did not correspond to the photo now in the passport and found that the photo had been substituted and that the applicant (whatever his name) was not the person who applied for that passport.
An issue arises as to whether the Tribunal was under an obligation to put other information obtained from the Consulate General or from the business visa application itself to the applicant for comment in writing under s.424A. Section 424AA does not apply, so the fact that the business visa application was discussed in the hearing is not determinative.
The first respondent addressed the possible application of s.424A to the information obtained from the Compliance Manager at the Consulate that: “Given this information, it is obvious the person on-shore is not the rightful passport holder … as the PSB has confirmed that the submitted passport photo does not match their record, it is safe to say the other information provided by the on-shore client will not match or be consistent with that contained in the original visa application” (email to Julie Prasad from Stephen Balkan dated 21 September 2006) [emphasis added].
It was contended for the first respondent that the information referred to in bold which permitted the Tribunal to conclude that the applicant was not the person he claimed to be and had travelled to Australia on a stolen or in some other way improperly acquired passport with the photo substituted, was an opinion or conclusion based upon information that was appropriately and properly identified by the Tribunal in its s.424A letter of 21 September 2006 set out above. As submitted, the relevance of the information about the different passport photographs was properly and adequately revealed to the applicant in the s.424A letter to which the applicant replied. The Tribunal considered this reply. The Tribunal put to the applicant that it would appear that he was not the rightful passport holder. The Tribunal met its obligation under s.424A in relation to the PSB’s advice about the difference between the photographs in the original passport application and in the passport the applicant provided to the Tribunal. It was not obliged to put to the applicant the compliance officer’s opinion that the other information provided by the applicant would not match that contained in the original visa application. This aspect of the Compliance Manager’s email was not “information” that would be the reason or part of the reason for affirming the decision under review. In fact, as the Tribunal discussed with the applicant, the personal details in the business visa application did match those given by the applicant (except in relation to his employer).
Counsel for the first respondent also addressed the fact that the Tribunal had before it additional information provided by the Consulate General in response to a question from the Tribunal as to whether it was possible to substitute a passport photo, about the possibility of and the frequency of such photo substitution and the procedure for substitution of photographs in passports. As the first respondent submitted, this information was not information specifically about the applicant, but was information about a class of persons of which the applicant or another person was a member to which the exception in s.424A(3)(a) applied. There was no obligation under s.424A(1) in relation to this information.
The Tribunal also obtained information “as a result of its inquiries” from the Consulate General about matters in the applicant’s business visa application. In response to its query as to whether the named employer in fact existed, the Consulate General provided the Tribunal with the result of preliminary checks about the applicant’s employment (as had been claimed in the business visa application), including the fact that the declared company was legitimate but was not registered with local directory assistance, the declared telephone number had been de-registered in March 2006 and that the fax number was not registered. Information with regard to the procedure for and cost of a telephone number in Guangzhou (and de-registration or non-renewal) was also provided.
The information about telephone number registration procedures would be within s.424A(3)(a), but the results of the internet and telephone checks in relation to the employment contact details claimed by the applicant was information that “undermined” the applicant’s claims to be the person he claimed to be (given that at no time did he claim to have travelled on a fraudulently obtained identity) (see SZBYR at [17]). This was an issue that would be, and in fact was, part of the reason for the Tribunal’s decision.
Hence the Tribunal failed to comply with s.424A(1) in relation to the information received from the Consulate General about the absence of directory enquiry registration of the employer and telephone numbers provided in the business visa application (the “declared” telephone and fax numbers). This was information relevant to the applicant’s claimed identity received in response to the Tribunal inquiries and should have been put to him in writing for comment, notwithstanding that the Tribunal did not refer specifically to this aspect of the response to its inquiries in its reasons for decision.
In addition, prior to the Tribunal hearing the Tribunal obtained from China (presumably from the Consulate General) the application for the business visa that was granted to the holder of the passport on which the applicant travelled to Australia. Information from this material was discussed at the hearing but was not put to the applicant under s.424A.
The first respondent contended that s.424A was not breached because although the difference between the business visa photo and the passport photo prompted the inquiry the Tribunal made of the Consulate General, the information ultimately relied on by the Tribunal was the information obtained from the PSB after the Tribunal hearing.
The business visa application was obtained from China by the Tribunal in response to its enquiries, as it told the applicant. Its possible relevance to the applicant’s claims is apparent from the fact that the Tribunal discussed aspects of that information with the applicant in the hearing and subsequently obtained further information from the Consulate General in China, not only about the photograph but also about the employment details claimed by the applicant in the business visa application.
As suggested in SZBYR (at [17]), the use in s.424A(1) of the future conditional tense suggests that the operation of the section is to be determined in advance and independently of the Tribunal’s particular reasoning and at a time when the Tribunal becomes aware of the information. Even if the Tribunal had disavowed reliance on this information that would not be determinative (see SZJZB v Minister for Immigration and Citizenship [2008] FCA 1731 at [25] per Jagot J). In fact it did not do so, but rather referred expressly to information received in response to its “inquiries”. The fact that the photograph in the business visa application did not appear to be of the applicant “undermined” the applicant’s claims in so far as the Tribunal found its inability to be satisfied as to his identity important not only to his credibility but also to its finding that it was “unsatisfied as to what his situation was in China” which was part of its reason for not being satisfied that he was a practising Christian member of a local church in China as claimed.
Taken together with the Consulate General’s advice about the results of the internet and telephone checks carried out in relation to the claimed employer in the business visa application, the material consisting of the photograph in the visa application was information in the sense of evidentiary material (and not simply inconsistent claims) that “undermined” the applicant’s claims in the sense considered in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 in so far as his identity “would be” relevant not only to his credibility, but also to whether the Tribunal would be satisfied as to what his situation was in China and hence whether to accept his claims about the past and that he had a well-founded fear of persecution for a Convention reason. (Also see MZXBQ v Minister for Immigration & Citizenship (2008) 166 FCR 483). In this sense the information had dispositive relevance to the content of the Convention claims advanced by the applicant, consistent with the fact that the Tribunal questioned the applicant about it in the hearing.
The Tribunal failed to comply with s.424A(1) by failing to put to the applicant “in writing” the information consisting of the business visa photograph and explaining its relevance by reference to the fact that it did not appear to be a photograph of the applicant, even if the employment information in the visa application was not of itself information that formed part of the reason for affirming the decision under review (as distinct from the Tribunal’s disbelief arising from inconsistency in the information before it about the applicant’s employment as considered SZBYR at [17] – [18]).
There is no reason to confine the “information” relevant to the applicant’s identity and within s.424A(a) to information obtained as a result of the Tribunal’s post-hearing inquiries. The Tribunal referred in its reasons to the evidence of the visa application (described as the “original visitor (sic) visa application”) and in its findings and reasons referred generally to information received in response to its “inquiries” (not confined to the passport photo information).
As there have been failures to comply with s.424A the decision should be remitted to the Tribunal for reconsideration according to law.
Section 424 and the overseas inquiries
The fact that the Tribunal obtained information from China after the hearing also raised the issue of whether ss.424 and 424B of the Act were breached. The parties were given the opportunity to make post-hearing submissions on this issue in light of recent decisions of the Full Court of the Federal Court. The first respondent did so. The applicant did not. Section 424 of the Act is as follows:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the person is in immigration detention --by a method prescribed for the purposes of giving documents to such a person.
In this case the Tribunal made an email enquiry of the Departmental Liaison Officer asking her to ask the Department to “investigate and advise”. This request was forwarded to the Consulate General. The resulting chain of emails is described above. In particular, through the Visa Office of the Australian Consulate General in Guangzhou the Department of Immigration made a written request (in Chinese) dated 13 September 2006 of the local PSB to “confirm the issued content and the photo” of the passport which the applicant produced at the Tribunal hearing. Copies of this document and a translation are before the Court. A copy of the passport personal information page was said to be attached to the request.
There is, however, no evidence before the Court as to precisely when this written request was sent to the PSB. The only evidence of this and of the PSB’s response is an internal email dated 19 September 2006 from one Consulate officer to another advising: “GD PSB replied on phone the photo we emailed to them does NOT match their records. They would like to make an appointment with us next Monday or Tuesday for a follow up – they would like to conduct a further investigation about this case”. It appears from this advice that the written request was conveyed to the PSB by email.
An officer of the Consulate General advised the Liaison Unit of this response by email. The information was forwarded to the Tribunal. The first respondent’s submissions addressed the issue of whether ss.424 and 424B applied to the request to the Department/Consulate by the Tribunal or to the request to the PSB.
Recent decisions of the Full Court of the Federal Court have addressed the scope and application of these provisions. In particular, in SZKTI v Minister for Immigration and Citizenship and Another (2008) 168 FCR 256 the Full Court of the Federal Court (Tamberlin, Goldberg and Rares JJ) held that the Tribunal’s failure to follow the procedures in ss.424(2), (3) and 424B was a jurisdictional error. The applicant had provided the Tribunal with a supporting letter from elders of a church and a contact telephone number. The Tribunal telephoned one of the elders and obtained information. The Full Court found that this constituted obtaining information additional to the information provided in the supporting letter and that it was within s.424(2). As this invitation was not in writing or otherwise in accordance with s.441A the mandatory requirements of s.424(3)(a) were not met (see [36] – [54]).
In SZKTI the Minister had unsuccessfully argued (as was submitted in this case) that there was a general power for the Tribunal to get “any information” it considered relevant under s.424(1) and that it could seek information from persons directly (as it was said to have done) or use “as an alternative” the method provided in s.424(2) (SZKTI at [36]). The Full Court rejected the argument that s.424(2) was merely an optional alternative method by which the Tribunal may proceed instead of under s.424(1) (at [42]).
The Full Court noted that in speaking to the person on the phone the Tribunal was asking him to volunteer information and was not acting under its powers in s.427(3)(a) to summon a person to appear before it to give evidence and stated (at [43] – [45]):
In our opinion in its natural and ordinary meaning s 424(2) provides a means by which a person may be "invited" to give additional information to the tribunal, that is, information which that person has not already provided to the tribunal or which the tribunal has not obtained in another way, such as pursuant to the use of its powers under s 427(3) to summons a person to give evidence. The introductory words to s 424(2), namely "without limiting subsection (1)", identify one of the means available under s 424(1) which the tribunal may employ to get information, but then s 424(3) prescribes the mode and limitations governing how it may invite a person to give it additional information. The Parliament provided a code in ss 424, 424A, 424B and 424C which made extensive provision for the tribunal to obtain information including by means of an invitation to a person to provide it. Those provisions specified the means by which the information was to be sought, and the consequences for its non-provision. We are of opinion that the Parliament did not authorise the tribunal to get additional information from a person pursuant to its general power under s 424(1) without complying with the code of procedure set out in ss 424(2) and (3).
Moreover, s 424B(1) made the intention of the Parliament manifest that the nature and extent of the natural justice hearing rule, where, relevantly, a person was invited to give information, was exhaustively set out in Div 4 of Pt 7 of the Act. There is nothing in the text or structure of Div 4 of Pt 7 which supports a construction permitting the tribunal to invite a person to give it additional information without complying with the requirements of ss 424(3) and 424B.
…
In our opinion, the Minister failed to provide any plausible alternative legal meaning to s 424(1) and (2) which allowed the tribunal to act as it did when inviting Mr Cheah to provide additional information without complying with ss 424(3) and 424B. Here, the tribunal’s obligations under s 424(3) were enlivened. Since those obligations were not complied with, the tribunal failed to follow the procedure specified in the Act for the provision by a person invited to give additional information of that information and committed a jurisdictional error.
Relevantly, the Full Court also stated at [53] “In our opinion, if the Tribunal requires additional information to be provided by a person it must follow the procedures that the Parliament has laid down to obtain that information”. In SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236 another Full Court came to the same view.
I note that in SZKTI the Full Court also canvassed the possibility that after the Tribunal had obtained additional information it may be obliged by s.425(1) of the Act to issue a further invitation to the applicant to a hearing to address new issues arising from that information, even if that information had been put to the applicant in a s.424A letter. While their Honours saw “some force” in this argument, they found it unnecessary to decide the question as the appeal succeeded based on the Tribunal’s failure to follow the procedures in ss.424(2) and (3) and 424B (but see SZILQ v Minister for Immigration and Citizenship (2007) 163 FCR 304 and SZJYA v Minister for Immigration and Citizenship (No 2) and Another (2008) 102 ALD 598). In the absence of any submissions on this issue and given my findings on s.424A it is not necessary to decide this question, despite the fact that it is raised by the fact that the Tribunal obtained information from the Consulate General and the PSB after the hearing.
As to s.424, it might be thought that because s.424(2) refers to an invitation to a person to give “additional” information, it would not apply when the Tribunal initially obtained information from the Department, the Consulate and the PSB as none of those entities had already provided information to the Tribunal in connection with the review in question. Section 424A(1) gives the Tribunal the power to “get” information. It does not in its terms prescribe the process by which it may “get” such information. In contrast s.424(2) appears to regulate a specific process of information-gathering initiated by the Tribunal issuing an invitation to a person to give “additional information”. When s.424(2) applies, that invitation must, by s.424(3), be given to the invitee by one of the methods specified in s.441A. Each of the methods in s.441A contemplates that the invitation will be given to the recipient personally or to an address “provided to the Tribunal by the recipient in connection with the review”. This would seem to suggest that s.424(2) would apply only where the recipient had already given information to the Tribunal in relation to the particular review in issue. If this were so then s.424(2) would have no application to the initial requests by the Tribunal to the Department Liaison Unit, the Consulate General or the PSB.
On that basis, if the further emails the Tribunal sent to the Liaison Unit that were forwarded to the Consulate General after the first enquiry and response could be said to be within s.424(2) as an invitation to give additional information, the Tribunal gave such further invitation by one of the methods specified in s.441A sent to the email address used in the initial response. Sub-section (5) provides for transmission by email to the last email address provided to the Tribunal by the recipient in connection with the review. Consistent with the approach taken by Buchanan J in SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 at [51], while s.424B(1) directs the Tribunal to specify the way in which additional information is to be provided, the recipients in these circumstances clearly understood that they were being invited to reply “in kind” by email, given the prior course of dealings between them. On this basis there would be no breach of s.441A or s.424B(1) in relation to such further information.
Section 424B contemplates specification of a period for the response, although this provision is expressed as an obligation on the invitee to give additional information within a period specified in the invitation (relevant to the consequences of a failure to respond within the time specified under s.424C and s.425 of the Act). There was no specification of a period for response by the Liaison Unit or Consulate General. However I am of the view, consistent with the reasoning in SZLWQ, that this would not be a breach of s.424B, and, if it was, that any failure to comply with the strict terms of that section would not in the circumstances of this case amount to jurisdictional error (see SZLWQ at [52]).
However, it is possible that s.424(2) is not so limited and applies whenever the Tribunal invites a person to give information that is additional to other information already before it (which would give it a very broad application), so that when a Tribunal “gets” information under s.424(1) by giving an invitation it must comply with s.424(3). If so, a question arises as to the application of s.424(2) (and ss.424B and 441A) to the information obtained from the PSB (as well as its initial inquiry to the Department).
This possibility arises from remarks of Buchanan J in SZKCQ and the approach taken by a differently constituted Full Court of the Federal Court in SZLFX v Minister for Immigration and Citizenship [2008] FCAFC 125, although in neither case was it expressly addressed or determined (and see SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889).
In SZKCQ a differently constituted Full Court confirmed the correctness of the approach in SZKTI (see Buchanan J at [59] – [72] with whom Stone and Tracey JJ agreed at [7]). There were two s.424 arguments in that case. First during the hearing the Tribunal had made an oral request to the applicant to provide additional information. Buchanan J held that this request was within s.424(2) and had to be made in writing (at [41]). His Honour rejected the contention that the Tribunal had a discretion whether to engage the procedure in s.424(2) and could proceed pursuant to s.424(1) (at [39] – [48]). While Buchanan J concluded that the s.424(2) obligation did not apply to information provided in an oral hearing under s.425 (and see s.427) he suggested that outside the oral hearing the scheme of Division 4 of Pt 7 of the Act appeared “in various ways, to establish as a necessary procedure that certain steps must be taken in writing” (at [51]). Reference was to the need (in light of s.422B) to attach significance and weight to the “safeguards … the procedural requirements, particularly those in ss 424, 424A and 424B, represent” (at [51]).
The other s.424 issue referred to in SZKCQ was a contention in an amended application that the Tribunal had failed to comply with the requirements of s.424 (together with ss.424B and 441A) in relation to an invitation given orally through the Australian High Commission to two persons said to have provided letters of support given to the Tribunal by the applicant. The Court found it unnecessary to deal with this issue, but Buchanan J observed at [74] that “prima facie … the provisions of s 424(2) were engaged also with respect to the additional information sought from each of them”. This has some analogy with the Tribunal request to the PSB made through the Consulate General, although that request was in writing (in Chinese) and no other information had been provided to the Tribunal from the PSB in connection with the particular review. The evidence before the Court as to the method of transmission to the PSB is limited to the reference in the officer’s internal email to an email inquiry. Such email is not before the Court. However if s.441A(5) is read literally, no email address had been provided to the Tribunal by the recipient (the PSB) in connection with the review. The issue that would arise is if s.424(2) was applicable is whether there was compliance with s.441A which contemplates communication to the last address provided to the Tribunal by the recipient in connection with the application for review or with s.424B given the absence of specification of the way in which the additional information may be given (s.424B(1)) or a period for the response (s.424B(2)).
In SZLFX s.424(2) was found to be applicable where the Tribunal orally obtained information from a person named as Michael from Falun Dafa (Sydney and suburbs). It is not possible to determine from the judgment whether the Tribunal had already obtained information from “Michael of Falun Dafa” in relation to the particular review. There is no reference to any other information provided to it in relation to the review in question from Michael or from Falun Dafa in the description of the facts in the decision of Raphael FM at first instance (see [2008] FMCA 451 at [4]) who did not address s.424. The Full Court of the Federal Court had regard to the fact that the Minister accepted in that case that if the contention before the Court which relied on SZKTI succeeded the appeal must be dismissed. Hence there was no consideration of whether the facts in SZLFX could be distinguished from those in SZKTI or SZKCQ.
This leaves open the possibility that s.424(2) is not limited to situations where the Tribunal invites a person who had already given it information in relation to the review in question to give additional information.
The first respondent made detailed submissions on the basis that s.424(2) may have such an application. To the extent that these take issue with the construction of the Act adopted in SZKTI and SZKCQ I am, of course, bound by those decisions. It was not suggested that s.441A should not be read literally (cf SZIAR v Minister for Immigration and Citizenship [2008] FMCA 1348 at [36] – [38] per Cameron FM).
A preliminary issue is whether there was an invitation to the PSB by the Tribunal, as distinct from a request (or possibly an invitation) to the Department Liaison Unit or to the Consulate General. In this case the Tribunal (of its own initiative) asked the Department to investigate in Guangzhou and advise. (See Abedi v Minister for Immigration and Multicultural Affairs [2001] 114 FCR 186 at [17] – [22]). The Tribunal did not ask the Department to obtain information for it from the PSB or to extend an invitation to the PSB from the Tribunal (cf SZKCQ). Instead the Consulate General proceeded to investigate by requesting verification of the passport photo from the PSB. (See SZKTI at [40] and SZKCQ at [39] – [40]). The Tribunal considered the information it “got” from the Department of Immigration including the information from the PSB. This is a basis for distinguishing the authorities referred to in relation to s.424(2).
However, the primary submission of the first respondent was that both SZKTI and SZKCQ were concerned with the Tribunal’s ability to obtain information from a natural person and not with information obtained by the Tribunal from “non-persons” or organisations such as other sovereign governments, inter-governmental bodies, Australian government departments, non-government organisations and other similar sources of information. It was submitted that it was apparent from the context in which these sections appeared that the principles in SZKTI and SZKCQ (that compliance with s.424(3) is mandatory where information is obtained from “persons”) did not operate where the Tribunal obtained information from sources other than natural persons notwithstanding that s.22(1) of the Acts Interpretation Act 1901 (Cth) is as follows in relation to the interpretation of provisions relating to “persons”:
(a) expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual;
(aa) individual means a natural person;
There are difficulties with this argument in so far as it suggests that the word “person” in s.424(2) is limited to natural persons. There would seem to be no reason to draw a distinction between an invitation addressed to an organisation (such as a government, religious or political organisation) asking it to provide additional information and an invitation addressed to a named individual, whether within such an organisation or not. If s.424(2) were to be confined to an invitation to a person (whether a natural person or otherwise) from whom information had already been provided to the Tribunal in connection with the review in question, the requirements of s.441A in relation to sending a document to an address provided to the Tribunal by the recipient in connection with the review could sensibly apply.
The first respondent contended that the Tribunal could choose to proceed under s.424(1) to “get” such information without meeting the formal obligations in s.424(3) and s.424B. However this is contrary to SZKTI. It was also submitted that the Tribunal had an implied power unencumbered by the requirements of ss.424 and 424B to perform its inquisitorial role of reviewing the facts and the findings of the delegate and that it would not have been intended by the legislature that the type of fact-finding that had been engaged in in this case be impeded by the obligations in ss.424(3) and 424B. Again this would seem contrary to the remarks in SZKTI (at 43]) about the “code” in ss.424, 424A, 424B and 424C for the Tribunal to obtain information (and see SZKCQ at [51]).
The first respondent pointed to the fact that none of the consequences of non-compliance with s.424(2) or (3) identified by the Full Court in SZKTI existed in the present case, in that there was no possible attendant unfairness operating against the Department or its information source in China as a result of the Tribunal’s request and that having regard to the content of the information and the email responses there was no information given to the Tribunal by the Department that could be said to be of an “impromptu” nature, given the timely but considered email responses. Moreover there was said to be no factor arising from any notional breach of ss.424(3) and 424B that could be said to affect the quality of the information.
It was also suggested that as particulars of the adverse information obtained by the Tribunal from the PSB were put to the applicant in the s.424A letter, procedural fairness obligations to the review applicant had been complied with in relation to that information.
It was submitted that if the Court did consider there was a breach of s.424(2) or s.424B of the Act and that no implied power existed, I nonetheless ought to exercise my discretion to refuse relief on the basis of futility, as if the request for information was repeated with instructions as to how the information which had already been given should be given in accordance with s.424B it was inconceivable that the information given by the Department or PSB would be different.
I agree with the submission that if this were the only jurisdictional error the exercise would be futile and would achieve nothing to the applicant’s advantage. I note that s.424B would not compel the Tribunal to require a response from the PSB in writing. As suggested, there was substantial compliance with ss.424(3) and 424B in relation to the invitations given to the Department and the PSB, given that the email responses received by the Tribunal were received within the 28 day time period required under the Migration Regulations in relation to information sought from overseas. Further, if (as seems likely) the mandatory requirement to have regard to information in s.424(1) flows through to s.424(2), the Tribunal had regard to this information.
Against this is the approach taken in SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 at [97] to the effect that it is only in “exceptional circumstances” that a court should refuse to issue the constitutional writs once it has determined that a Tribunal has failed to comply with its imperative statutory obligations to an applicant.
To the extent that these submissions take issue with the approach taken by the Full Court in SZKTI and SZKCQ I am of course bound by that approach. Beyond this, I do not have the benefit of submissions from the applicant in relation to this area of complexity. I contemplated referring the applicant for pro bono assistance to assist in that respect, but given my findings on s.424A (and the fact that the High Court has now granted special leave to appeal in SZKTI and SZLFX), I decided that it was unnecessary and inappropriate at this time in the particular circumstances of this case to attempt to determine the correctness of the first respondent’s submissions on the scope of ss.424, 424B and 441A and their application to the overseas inquiries in issue in this case. I also note that such issues are, as I understand, currently before the Full Court of the Federal Court in a matter transferred from this Court.
Strictly speaking it is not necessary to address the first respondent’s submission that if there was such a breach of s.424, relief should be refused in the exercise of my discretion, as I am of the view that the matter should be remitted for redetermination given the breach of s.424A of the Migration Act. However if there was a breach of s.424 (or 424B) in relation to the overseas inquiries constituting jurisdictional error and if this were the only jurisdictional error affecting the review I would regard this as an “exceptional case” in which relief should be refused for the reasons suggested above.
I note that in these circumstances where the “invitation” (if there was one) in relation to information from China was in writing (cf SZKTI), the critical issue would be whether the content of the response or responses was adequately communicated to the applicant, whether under s.424A or (or possibly and) s.425 to enable him to address that material, consistent with the Tribunal’s procedural fairness obligations under Division 4 of Part 7 of the Act.
Section 424 and invitation to applicant in hearing
There is one other s.424 issue that arises on the material before the Court, but was not addressed in submissions. As indicated above, the Tribunal’s account of the hearing was brief and not very informative. The Tribunal also recorded that “following the hearing, the applicant submitted a statement of support from the Padstow Chinese Congregational Church”. However it is apparent from the transcript of the hearing that when the applicant told the Tribunal (through an interpreter) that the church he attended in Australia was called the “Padstow Preaching Church” the Tribunal asked him: “Padstow Preaching Church sounds odd, can I ask you through your adviser to let me know the full and proper name and address of the church that you attend?” (transcript page 9). In context this was clearly a request for information to be provided after the hearing. The Tribunal also asked for the name of the priest. The applicant provided this orally.
In SZKCQ the Full Court found that s.424(2) applied to a request for additional information made to an applicant in a hearing. On this basis such an invitation would have to be given in writing (see SZKCQ at [34] – [58]). The invitation for further information about the name and address of the church was made orally. Unless SZKCQ can be distinguished (and Buchanan J did conclude at [49] that the s.424(2) obligation does not apply to information which was provided by way of evidence or argument in oral hearing) it would follow that the Tribunal failed to comply with what Buchanan J described as a “mandatory obligation” when it asked the applicant to provide it after the hearing with the full name and address of the church he attended. This would provide a further basis on which the decision of the Tribunal should be set aside.
This possibility was neither raised by the applicant nor addressed in the first respondent’s submissions. However it need not be pursued given my findings in relation to s.424A.
I have, however, considered the other grounds relied on by the applicant.
Country information and section 424
The amended application of 29 March 2007 which sought to “amend” the original grounds of review asserts error of law. First it is contended that the Tribunal failed to “consider” items of independent country information which the applicant submitted to it, as was said to be required under s.424 of the Migration Act. The applicant referred to 15 articles his adviser submitted to the Tribunal about the persecution of Christians in China.
Section 424(1) of the Migration Act provides that the Tribunal may get any information it consider relevant but, if it does so, it must have regard to that information in making the decision on the review. The Tribunal did not obtain the country information in issue of its own volition. Rather the applicant’s adviser submitted these articles by letter dated 1 August 2008 as “further documents for the applicant.” In its reasons for decision the Tribunal referred to the fact that the applicant had submitted documents reporting on the treatment of Christians in China. It was not necessary for it to address specifically particular aspects of this information in its findings and reasons as the selection of and weight to be given to items of independent country information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] – [13] and NARD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 27 at [13]). This ground is not made out.
Improper exercise of power
Another generally expressed ground in the original application is that “the making of the decision was an improper exercise of power”. It is unparticularised and as expressed is not made out.
Failure to consider favourable evidence
Nor is the unparticularised ground that the Tribunal did not consider “evidence” in favour of the applicant, but only evidence not in his favour made out. The Tribunal addressed the applicant’s claims. Factual findings are a matter for the Tribunal. In so far as this ground seeks merits review, merits review is not available in this Court. As expressed this ground does not establish bias.
Whether Tribunal considered “context” of claimed fear of persecution
The claim in the original application that there was “a breach of the rules of natural justice” in that the Tribunal did not consider the context in which the applicant would face persecution and serious harm does not establish jurisdictional error. The Tribunal considered the claims of the applicant in so far as it was necessary to do so. However, based on its view of the situation of Christians in China, its inability to be satisfied as to what the applicant’s situation was in China, his evidence about his employment and the time he stayed in China after a claimed arrest the Tribunal did not accept the applicant’s claims about past events or that there was a real chance he would be arrested or suffer any other form of harm amounting to persecution for this or for any other Convention reason. As it did not accept that he was a member of a local church as claimed it was not necessary for the Tribunal to address his claimed fear of persecution on this basis. No denial of natural justice is established on this basis.
Section 422B, natural justice, bias, logic and Tribunal findings
Another ground in the amended application of 29 March 2007 is that the Tribunal failed to comply with its obligation under s.422B of the Migration Act to comply with the natural justice hearing rule. The first particular is that the Tribunal finding "There are many Christians in China and although there are problems from time to time, merely being Christian does not give rise to a well founded fear of persecution" was “totally self-contradictory” and showed a lack of understanding of the situation in China on the part of the Tribunal. It was submitted that by making a decision based on such an "immature opinion" the Tribunal breached s.422B.
However s.422B(1) provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. This contention does not establish a breach of any of the procedures in Division 4 of Part 7. I note that s.422B(3), which requires that in applying the Division the Tribunal act in a way that is fair and just, did not come into effect until 29 June 2007 and is not applicable to this matter.
More generally, the contention that the Tribunal’s sentence was “self-contradictory” does not establish jurisdictional error. As Flick J pointed out in SZDFZ v Minister for Immigration and Citizenship and Another (2008) 168 FCR 1 at [40]: “… what may be described as ‘illogical or irrational’ inferences drawn from the facts before the Tribunal may often be an unhelpful characterisation of the reasoning process and may amount to no more than a conclusion that a Court may have reached a different factual conclusion”. While the Tribunal did not refer to particular country information, it had before it the information relied on by the delegate about Christianity in China as well as the information provided by the applicant’s adviser. It has not been established that this finding was not grounded upon probative and logical grounds in the sense considered in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198.
The next particular takes issue with the fairness of the Tribunal finding that the fact that the applicant worked for one employer until he left China suggested that he was not of any interest to the Chinese authorities. The Tribunal did not accept the applicant’s explanation (that his employer was a joint venture with an overseas company) finding that if he had no employment problems it was because there were no grounds for any problems and that if he had been arrested and detained on more than one occasion (as he claimed) it would have had consequences for his employment. The applicant took issue with this aspect of the finding based on his view of the situation in China. However this seeks impermissible merits review.
The third particular refers to the fact that the Tribunal had regard to the applicant’s evidence that he remained in China for two years after his “claimed second arrest” as indicating that he did not have a fear of persecution. The applicant suggested that there was a lack of logic on the part of the Tribunal. In the amended application he claimed that it was not for him to decide when he could leave China and that for one year and four months (not two years) he had just waited for the chance to leave. It was contended that it was unfair to make a decision for such reason.
The applicant’s delay in leaving China was not the only reason the Tribunal gave for rejecting his claimed fear of persecution. In any event lack of logic is not, of itself, a jurisdictional error and nor is a factual error about the time the applicant remained in China. The applicant's disagreement with the Tribunal's reasons in this respect does not establish jurisdictional error.
If this ground is intended to suggest that the Tribunal reasons for decision revealed that it was biased, neither actual nor apprehended bias is established on this basis. An allegation of bias is a serious allegation that is not easily proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J and ApplicantA165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877 at [58] – [63] per Lander J). The Tribunal reasons for decision are not such as to establish that the Tribunal’s mind was so committed to a conclusion as to be incapable of alteration whatever argument or evidence was presented. The applicant’s view that the Tribunal’s findings were self-contradictory, confused, lacked an understanding of China, were the result of immature opinion, were unfair or illogical do not establish actual bias in the sense considered in Jia Legeng.
Nor is apprehended bias established from the perspective of the properly informed, reasonable observer. These contentions do not establish a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the questions to be decided (see Jia Legeng at [27] – [28]).
It is only in a rare and exceptional case that bias could be established on the part of the Tribunal simply by reference to its reasons (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17] per McKerracher J). This is not such a case. The findings of the Tribunal were open to it on the material before it. In so far as the applicant’s disagreement with the Tribunal’s findings seeks merits review, merits review is not available in this Court. This ground is not made out. Issues arising out of the conduct of the Tribunal hearing are discussed below.
The amended application then contended generally that there was a failure to comply with s.424 and 422B and that there were procedural errors amounting to an absence of natural justice. As pleaded, these contentions do not establish jurisdictional error on the part of the Tribunal.
Christianity in China issue
Before considering issues arising out of the Tribunal hearing it is convenient to deal with the remaining grounds pleaded in the amended application of 27 March 2007.
The third ground in the amended application of 27 March 2007 is that the Tribunal failed to determine “the central question of fact” of whether or not the applicant was a practising Christian in China and hence failed to properly determine whether the applicant faced persecution in China on that basis and whether he was a refugee for the Convention reason of his religion as a Christian.
In the particulars reference was made to the Tribunal’s finding: “If his description of his religious observance in China had been more convincing, I might have been prepared to accept that he was a practising Christian in China, despite my doubts about his credibility as a whole. However … the fact that I do not know who he is leaves me unsatisfied as to what his situation was in China”.
It was submitted that after it expressed doubts about the applicant’s credibility generally, the Tribunal concluded that, because it did not know the applicant's true identity, it could not make any finding of fact as to his actual "situation" in China, but that this conclusion was both illogical and wrong in law. It was contended that the Tribunal was under an obligation to determine whether the applicant, being the person who had attended the hearing before it, (regardless of his name), was a Christian in China and faced a real chance of persecution on that basis. It was contended that the Tribunal had failed to either accept or reject the central fact on which his claims to refugee status relied and hence the determination that he was not a refugee on the basis of his religion was affected by jurisdictional error. The applicant’s contention is not that the Tribunal failed to consider the applicant’s claim to be a Christian in China, but rather that it was obliged to make an express finding of fact either accepting or rejecting that claim.
Counsel for the first respondent submitted that the Tribunal need only be satisfied that the applicant did not have a well-founded fear of persecution (see s.65 of the Act). Reliance was placed on what was said by Callinan J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [193] as follows:
This … is not a case therefore in which the Tribunal failed to determine, by making an explicit factual finding, a factual issue which was an essential preliminary to the making of the ultimate decision. The only essential matter for decision was of the existence or otherwise of the relevant well-founded fear and in making that decision the Tribunal gave particular, but not exclusive consideration to the matters which the [applicant] placed at the forefront of his application.
It was contended that there was no obligation on the Tribunal to make a factual finding that the applicant was not a Christian in China, as it was merely required to arrive at a state of satisfaction as to whether or not the applicant met the criteria for a protection visa. It was also submitted that to the extent that this ground was an attempt to re-agitate the merits of the applicant's case, merits review was not available in this Court.
By s.65(1)(a) of the Act the decision-maker (here the Tribunal) is required to grant a visa if satisfied that an applicant has met the specified criteria. Under s.65(1)(b) however, the Tribunal is required to refuse the visa if not so satisfied. In Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73 the Full Court of the Federal Court stated at [17]:
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 non-satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant’s claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims. The Tribunal’s approach was upheld by a Full Court at [15]:
"It can be seen from the form of [s 65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied."
On this basis the approach taken by the Tribunal was open to it, subject to what Lee J (with whom Tamberlin J agreed) said in Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 about reasonableness. His Honour stated at [80] – [82]:
The Tribunal obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Eshetu per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72]).
The decision of the Tribunal is to be based upon the formation of the state of satisfaction required by s 65 of the Act. That state of satisfaction, or of non-satisfaction, however, must be formed reasonably upon the material before the Tribunal. As stated by Iacobucci J in Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [56] (referred to by Gummow J in Eshetu at [145]):
‘An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, the Court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.’
The foundation for all of the foregoing is the requirement that the Tribunal act judicially by according procedural fairness (Australian Broadcasting Tribunal v Bond per Deane J at 366 -367).
The Tribunal was of the view that it could not establish what the applicant’s situation was in China, given his description of his religious observance in China, its doubts about his credibility and the fact that it did not know who he was. In this respect it was apparently of the view that it could not establish the “relevant facts” and on this basis made no finding either accepting or rejecting the applicant’s claims to have been a Christian in China.
Had the Tribunal’s state of non-satisfaction that the applicant met the criteria for a protection visa been based solely on its lack of knowledge about his identity, there may be strength in a contention that that was an unreasonable decision in the sense considered in Applicant M164/2002. However the applicant’s claim was to have been a practising Christian member of a house church in China who had been arrested and detained on more than one occasion. In considering this claim the Tribunal also had regard to the applicant’s description of his religious observance in China which it found unconvincing (a matter considered further below in relation to s.425); its finding that merely being a Christian in China did not give rise to a well-founded fear of persecution; the fact that the applicant had worked for one employer until he left for Australia (which was said to suggest he was not of any interest to the authorities); and the fact that he remained in China for two years after his claimed second arrest which was said to indicate that he did not have a fear of persecution.
In effect, the Tribunal concluded that even if accepted the applicant (who attended a Christian church in Australia and had some knowledge of Christianity) was a Christian in China, it did not accept his claims about past arrests for reason of his religious activity or that there was a real chance he would be arrested or suffer persecution for reason of his religious activity or for any other Convention reason on his return to China. This ground is not made out.
The “cart before the horse” issue
The final ground in the amended application of 27 March 2007 is that the Tribunal “erred in the way it took into account its findings of fact” that the applicant's passport had been photo-substituted, that his explanation in that regard was unsatisfactory (which was not denied) and that his true identity therefore remained unknown. It was contended that in determining that the applicant was not a refugee the Tribunal gave excessive weight to these factors before first considering the merits of his claim that he had a real chance of being persecuted in China because of his religion. It was submitted that that chance did not depend only on the applicant's actual identity, but also on the fact of his religion and his claims of past mistreatment. It was said to be an accepted principle that if a person was determined to be a refugee, then the fact that he or she had travelled to Australia under a false or fraudulent passport may be justifiable and excused. The Tribunal was said to have considered the relevant factors in the wrong order, “putting the cart before the horse” so to speak and, therefore to have led itself into legal error.
Counsel for the first respondent reiterated that there were no rules dictating how the Tribunal must reach its requisite state of satisfaction, or otherwise. It was contended that the applicant had provided a passport to the Tribunal which, according to information it obtained, contained a photograph that was different to the photograph recorded by the Chinese authorities as that of the bearer of the passport. The applicant was put on notice of this through the s.424A letter and invited to comment, but his explanation did not address the central issue, namely that it appeared that he was not the person of the stated name who applied for the passport. It was said to be open to the Tribunal to take this into account in assessing the applicant's credibility and in relation to his claims as a whole.
As Gleeson CJ observed (at [14]) in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165:
Decision-makers commonly express their reasons sequentially; that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.
The order in which the Tribunal expressed its findings does not establish jurisdictional error. As set out above, in addition to the Tribunal’s lack of satisfaction about the applicant’s identity and hence his “situation” in China it had regard to his description of his religious observance, his employment history and the time he remained in China after his claimed arrest. While it is the case that travel under a fake or fraudulent passport may be justifiable, in this case the applicant made no such claims. The weight the Tribunal gave to “identity” issues and the fact it addressed these matters before other issues is not such as to establish that it erred in the way it took into account findings of fact in a manner constituting jurisdictional error.
Issues arising out of the transcript of the Tribunal hearing
In oral submissions the applicant raised a number of issues about the conduct of the Tribunal hearing. As set out above, the Tribunal account in its reasons for decision of what occurred in the hearing was particularly brief, notwithstanding that the hearing record indicated that the hearing was 1 hour and 55 minutes long.
In light of this brevity and the issues that the applicant raised I gave him the opportunity to file a transcript of the Tribunal hearing and written submissions. He did so. The first respondent filed a “corrected” version of the transcript annexed to an affidavit of Megan Palmer sworn on 12 June 2008. The applicant does not dispute the accuracy of the corrected transcript.
The applicant contended that the Tribunal did not properly exercise its power in his case having regard to the fact that “about 60 per cent” of the hearing was occupied with the Tribunal asking questions about how he obtained a subclass 456 visa to travel to Australia, when he had already explained that he did not really know the exact details. He contended that the Tribunal had not seemed interested in his persecution and findings of fear thereafter as distinct from the visa issue, his employment and how he left China, the involvement of his parents in church activities and meetings and the incident in October 2004 (when the PSB was said to have broken into their house where the applicant lived and where there was a “Christian congregation”) and the fact that his parents were not arrested.
The applicant submitted that the Tribunal was prejudiced, full of disbelief and blame, as indicated by remarks made about the existence of fraudulent documents (transcript page 23). He also took issue with the fact that the Tribunal member had indicated that if the Consulate had seen the difference between the photos in the visa application and the passport then he was very lucky that they had given him a visa (transcript page 23). When he observed “Thank God” the member stated “Thank God, or say some thanks to the carelessness in the Consulate”.
The applicant referred to the fact that at the start of the hearing he was told that the Tribunal’s responsibility was to test whether he met the criteria for refugee status and whether he had a well-founded fear of persecution. However he claimed that the Tribunal did not in fact test that claim and did not address whether or not he was in fear of persecution in the hearing. Rather it had focused on the applicant’s work in China and how he left China, in particular how he obtained a visa and passport. The applicant also submitted that the Tribunal did not consider the evidence he had submitted to support his claim.
Counsel for the first respondent acknowledged that the Tribunal asked questions in some detail in relation to distinctions between material in the protection visa application and the business visa application. It was submitted, however, that this was open to the Tribunal, as was its focus on questioning about how the applicant was able to obtain a passport and the circumstances of his departure from China.
It was contended that the Tribunal had put dispositive issues to the applicant under s.425 of the Act in that it not only asked him about attending the local official church, but also tested his religious knowledge. It was also submitted that the adverse information to which the s.424A letter was directed was an important matter addressed at the hearing, which was a dispositive part of the decision. On this basis it was contended that the Tribunal was not required to go into great detail about a particular aspect of the applicant’s claims (such as his activities in the house church) as there were other significant matters before it in relation to which there were significant difficulties. The question of identity was said to be essential for the purposes of the Tribunal being satisfied that the applicant was a credible witness, as his credibility impacted upon the Tribunal’s conclusion that it did not accept his claims to have been arrested by reason of his religious activities. While that conclusion was not formed on the basis of any reasoning about the applicant’s claims about arrest, it was said to be open to the Tribunal to form that conclusion for other reasons. It was also submitted that the applicant’s claim about the incident in 2003 when he claimed police broke into the leader’s home, was not a dispositive issue, because the dispositive issues were those identified in the reasoning and the reasoning had not relied on this issue.
The first respondent also contended that it was not necessary for the Tribunal to expressly alert the applicant to the fact that a determinative issue in relation to his claim about his religious observance in China was the evidence he gave about his practice in China. While questions the Tribunal asked of the applicant in the hearing were addressed to his religious observance as a member of the official church (which he claimed he stopped attending in 2000) it was submitted that it was open to the Tribunal to question the applicant on this basis as it was part of his description of his practice of religion in China. It also questioned him about his knowledge of the Bible.
Hence it was submitted that there was no breach of s.425, denial of procedural fairness or improper conduct by the Tribunal at the hearing. Rather it was said that the transcript revealed that while the Tribunal was focused on particular issues, it had still obtained from the applicant the substance of his factual claims.
It was also contended that while the remark by the Tribunal about “thanking” the carelessness of the Consulate was perhaps a sarcastic remark, it was not such as to amount to apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 and NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264). It was submitted that the circumstances were not such that an independent lay observer would think that the Tribunal had not approached the task with an open mind.
It is the case that a considerable part of the Tribunal hearing, in particular immediately after the introductory remarks and confirmation of personal particulars, related to the business visa application. The Tribunal told the applicant that it had the visa application he submitted in China. It asked him if a business card was his (transcript page 4) and if he knew who a person in a photograph was (page 4). He told the Tribunal that it was not his business card and he did not know the person.
The Tribunal then told him (page 4) “Well, then I have a problem. Because this business card and this photo was attached to your visa application”. The Tribunal observed that the signature on the business visa application looked like that of the applicant and suggested “there is something funny going on” (page 5), to which the applicant replied “impossible”. The applicant’s only explanation for the photograph was that his visa was organised by a travel agent (page 5).
The applicant stated (transcript page 7) that he did not know the man who was said in the visa application to be the general manager of the company he worked for and when asked if he had heard of a particular company (apparently associated with the visa application) (transcript page 8) the applicant indicated that he had not. Overall he did not know how this had happened (transcript page 8).
After confirming the applicant’s claim that his family was Christian and that he was baptised as a baby (page 8 – 9) the Tribunal then asked a number of questions about his attendance at a church in Sydney, indicating that it wanted to know the proper name and address of the church and who was in charge. The applicant provided a name (page 10).
The Tribunal then asked “When you were in China, you say you used to attend the official church, which church did you attend?” (page 10). When asked what it meant, the Tribunal clarified that it was asking which denomination was the church. The applicant appeared not to understand this concept and eventually stated (page 11) “Mine is family get together church”. He went on to volunteer general and what might be seen as somewhat vague information about the church in China. For example, he suggested that in the church “all these things for prayers, read bibles almost the same. Just a priest different.” He claimed that he stopped attending the official church in September 2000 and was introduced to a house church in 2002.
The Tribunal asked him what had happened during the official church services (to which he responded “Prayer, sing the prayer, read the Bible and preaching”). The applicant then correctly answered questions about the Bible (page 12 – 13). After the Tribunal explained that it was difficult to persuade it that people were Christians if they could not name at least some of the books in the Bible, the Tribunal stated “Anyway that’s not your case, let’s concentrate on your situation” (page 14) before asking questions about the applicant’s claims that in 2004 the PSB raided his home during a gathering, that he was detained, mistreated and released after his parents made a payment (pages 14 – 16).
The Tribunal then asked about the applicant’s parents’ religious activities (page 16 – 19) and about his departure from China. In the course of this discussion the applicant explained that he initially applied for a passport after August 2003 and was told it was refused because of his background but that it was issued in January 2004 after he paid money.
The Tribunal then asked about the claimed events of 2003 when the PSB were said to have warned him, before a discussion about the October 2004 incident and the claims about what occurred when the PSB raided his house.
The Tribunal confirmed that it wanted details of the church in Sydney to verify the applicant’s attendance. The Tribunal then referred to the issue of the visa application being “very strange” (page 23) and stated that “Because although there are plenty of fraudulent documents I can only say if the Consulate got the visa application with that photo attached to the application and saw that photo in the passport, why would they give your visa, I don’t know, so all I can say is that was what really happened that you are very lucky”. The applicant responded “Thank God” to which the Tribunal remarked “Thank God, or say some thanks to the carelessness in the Consulate” (page 23).
The Tribunal asked the applicant if he wanted to say anything more before the hearing finished and stated: “All right, I have a lot to think about. You have been able to answer a lot of my questions, and I just have to give some thought to everything that you said, and put it together with the information that will be sent to me later” (page 24).
The Tribunal did not at any time in the hearing expressly notify the applicant that it had concerns about his identity, but its discussion of the content of his visa application and the difference between his passport photo and the visa application photo clearly put the applicant on notice that the question of his identity was in issue.
As mentioned above, given my findings on s.424A and the absence of submissions from the parties, I have not addressed the possible question (not specifically raised by the applicant) of whether the Tribunal should have had a further hearing to address issues arising as a result of its post-hearing inquiries.
As to the Tribunal’s conclusion about a lack of conviction in the applicant’s account of his practice of Christianity in China, the Tribunal asked the applicant questions about his religious practice in China and clearly alerted him to the need to address this issue and the credibility of his claims. While these questions were largely in relation to the official church, the applicant was given the opportunity not only to describe that church but also to describe what occurred in church and at gatherings raided by the PSB. The Tribunal did not reject the applicant’s claim to have been a Christian in China. Rather, it was not satisfied that he was a member of a local church as claimed to whom the claimed past events had occurred. It has not been established that the Tribunal failed to raise dispositive issues in the sense considered in SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2006) 228 CLR 152 and failed to comply with s.425 of the Act.
Further, neither actual nor apprehended bias in the sense outlined above is established in all the circumstances having regard to the conduct of the hearing as well as the reasons for decision. It was open to the Tribunal to canvass areas of concern including the “business visa” issue. Given the applicant’s lack of knowledge about the photograph and business card attached to the visa application, in context the Tribunal’s remark about fraudulent documents can be seen as a comment about the fact that the applicant was fortunate that, despite the difference between the photographs in the visa application and the passport, he obtained the visa. The Tribunal’s off-hand or sarcastic remark about thanking the Consulate may have “upset” the applicant but it is not evidence of predetermination or of bias from the perception of the appropriately informed lay observer. Nor is this a case in which the Tribunal’s manner and approach has been shown to be such that the applicant was deprived of the opportunity to give evidence and present arguments as required under s.425 of the Act (cf Minister for Immigration and Multicultural and Indigenous Affairs v WAFJ (2004) 137 FCR 30.
Church attendance in Australia
Finally I note that in submissions counsel for the first respondent addressed the possibility that a sur place claim arose based on the fact that the applicant engaged in Christian activities in Australia. There were some perfunctory questions in the Tribunal hearing about the applicant’s attendance at church at Padstow and the request for further information in relation to which s.424(2) may apply as discussed above.
I accept that, as the first respondent submitted, there was no suggestion from the applicant that this activity itself would lead to persecution in China. The material before the Tribunal was not such as to give rise to a claim that because of his particular circumstances, the Chinese authorities would be aware of the applicant’s practice of Christianity in Australia and that he would face persecution on that basis. There is no suggestion that his practice of Christianity in Australia of itself would lead to him being persecuted back in China or that his practice in Australia was relied on other than to support the genuineness of his Christianity. In that respect the Tribunal found that merely being a Christian in China does not give rise to a well-founded fear of persecution.
I also accept the submission that s.91R(3) was not engaged. That section requires the Tribunal to disregard activity in Australia if the Tribunal forms the view it was engaged in for the purposes of strengthening the claims. There was no such finding in that regard by the Tribunal, which accepted that the applicant had attended a Christian church in Australia and had some knowledge of Christianity.
However, as failure to comply with s.424A has been established the matter should be remitted to the Tribunal for redetermination.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 24 December 2008
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