SZJZN v Minister for Immigration
[2007] FMCA 980
•29 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 980 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – status – refugee status – refusal – visa – protection visa – whether s.91R(3) only applies to conduct which is solely motivated by the purpose of strengthening of the applicant’s claim to be a refugee – whether s.91(3) applies when there is more than one motivation for the conduct in question. |
| Migration Act 1958, ss.91R, 91X, 425 Explanatory Memorandum to the Migration Legislation Amendment Bill (No. 6), paras.25, 26 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZIQD v Minister for Immigration & Multicultural Affairs [2006] FMCA 1467 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 NBID v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 653 Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 Applicant M164/2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16 Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 |
| Applicant: | SZJZN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 36 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 2 April 2007 |
| Date of Last Submission: | 2 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Craddock Murray Neumann |
| Counsel for the Respondents: | Ms B.K. Nolan |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 36 of 2007
| SZJZN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 29 March 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) signed on 14 December 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 31 August 2006 refusing the applicant’s application for a protection visa.
Section 91X of the Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.
Background facts
The Tribunal described the applicant as follows:
… the applicant is a male national of China, born in Fuqing City in 1974. He states that he speaks, reads and writes Mandarin and Fuqing. He gives his religion as Catholic, and his ethnicity as Han Chinese.
… The applicant attended school for 8 years, then worked continuously in various positions from July 1990 to July 2006. His most recent employment was as a self-employed retailer (in clothing, from October 2005 to July 2006) and as a production manager in a biological engineering company (March 2002 – October 2005).
The applicant states that his wife and daughter (born February 2002) remain in China. Other close relatives are his parents and two married sisters. (Court Book (“CB”) page 269)
The applicant claims to fear future persecution in China for the following reasons:
a)his Catholic faith;
b)his imputed association with Falun Gong;
c)his non-compliance with China’s birth control policies;
d)an imputed anti-government political opinion based on the fact of his protection visa application; and
e)his planned participation in anti-government protests if he returns to China. (CB 286)
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-21 of the Tribunal’s decision (CB 269-286). Relevantly, they are in summary:
a)the applicant was born into a Catholic family and accompanied his parents to church. The authorities closed down the church when he was about nine years old;
b)from that time, his community attended house churches. The applicant’s home was in a “secluded and isolated part of Fuqing City”, so most services were held at their home. A pastor subsequently said to be a bishop (Bishop Lin) assisted by a priest (Fr. Liu) held the services. The Public Security Bureau (“PSB”) rarely visited his home village;
c)at the Tribunal hearing the applicant said that in 1998 the priest who presided at masses held in the applicant’s home, whom he knew as “Uncle Geng”, was taken to the police station for interrogation;
d)after the Tribunal hearing the applicant submitted two texts. One of these described the underground church having approached the applicant in 1998 to set up a “secret Underground Catholic Group” and his subsequent work recruiting followers, holding meetings and distributing “propaganda material”. The applicant stated that these activities attracted the adverse attention of the authorities, with “Uncle Geng” often being interrogated; (CB 281)
e)one night in June 2003, the applicant saw five uniformed PSB officers outside his home. There were about thirty Catholics inside his home. He let them out the back door. The PSB officers entered the home and saw five or six bicycles and many Bibles that had been left behind by the worshippers. The applicant lied to the PSB officers that the bicycles belonged to friends and relatives visiting next door, and that some friends had asked him to mind the Bibles. The officers confiscated the Bibles and left the applicant with a warning;
f)
on 7 April 2004, Fr. Liu telephoned the applicant asking him to host a three-day conference for priests at his home. The applicant agreed, and it was held on 8 April 2004, attended by Fr Liu, about fifteen other priests and a bishop, Shu Dao Yang. At 11pm on
9 April 2004, the applicant was warned by telephone that three PSB vehicles were approaching. The applicant let Bishop Yang and the others out the back door, so they could hide. Six PSB officers came to the door and, upon entering the applicant’s house, found Christian materials that had not been cleared. The applicant was taken to the PSB office in Fuqing, where he was interrogated about the underground church and ‘severely tortured and beaten’. He was held in a dark and dirty PSB office cell for five days, and denied food for two days. His father paid RMB 20,000 for his release;
g)at the Tribunal hearing the applicant said that on 6 March 2006 a priest celebrated mass at the applicant’s house and thereafter had never been seen again;
h)on 5 April 2006, a Catholic gathering was being held at the applicant’s place whilst the applicant was next door, reading. Among those attending was a person referred to as “Qing”, a longstanding Falun Gong practitioner. Later, the applicant learned that Qing had conducted some Falun Gong practices at his place and that the Catholics present had joined in. Qing then starting attending at the applicant’s place more frequently;
i)in June 2006, Qing told the applicant that he (Qing) was subject to an arrest warrant and that he planned to flee China. He alerted the applicant that the applicant might be implicated for allowing Catholicism/Falun Gong to be practised in his house or for being a practitioner himself. Qing recommended that the applicant leave China before he too was subject to an arrest warrant;
j)the applicant began living at his aunt’s house in order to make it more difficult for the authorities to find him;
k)at the Tribunal hearing the applicant said that on 8 July 2006 he learned from a classmate who worked for the PSB that he was now on a blacklist because of his involvement in church activities;
l)on 30 July 2006, the applicant left China for Malaysia. He obtained a fake passport and travelled to Australia via Singapore. The applicant was arrested on arrival in Australia;
m)the applicant stated that in Villawood IDC, he had attended church and was pleased to be able to practise his religion;
n)the applicant stated that his wife told him on the telephone on 9 August 2006 that a PSB officer came to his home on 1 August 2006 with a summons stating that he was accused of “participating in Falun Gong activities” and requiring him to attend the local PSB office no later than 2 August 2006. Attached to the submission provided by the applicant’s adviser to the Tribunal prior to its hearing was a photocopied document, with English translation, purporting to be a duplicate of a summons from the Fuqing Public Security Bureau, addressed to the applicant. Dated 1 August 2006, it purports to require him to attend the Shangjing Police Station on 2 August 2006, ‘because you are suspected of participation in the activities of Falun Gong organisation’. (CB 272) The original of the photocopied document was later supplied to the Tribunal; (CB 273) and
o)the applicant stated that his wife was six months pregnant with their second child. He asserted that they wished to have a third child, and that this would place them at risk of persecution. He claims that the one child policy is applied more strictly to Catholics and Falun Gong practitioners.
Prior to the Tribunal hearing the applicant’s adviser sent the Tribunal a submission which referred to the applicant’s protection visa application being, itself, a factor which would increase the likelihood and severity of the punishment he claims to fear as a Christian and a perceived Falun Gong associate. The submission referred to Chinese government agents in Australia. (CB 272) At the Tribunal hearing the applicant said that he was afraid that information would leak back to the PRC authorities. (CB 278)
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
Generally
a)although the applicant presented his refugee claim immediately on arrival in Australia on 4 August 2006 and this would generally speak in his favour, the material before the Tribunal did not reveal whether the applicant had initiated the protection request on his arrival or only after his false passport was detected. Consequently, the Tribunal considered this factor to be of little assistance in its assessment;
b)although the applicant departed China on a genuine passport in his real name, he travelled first to Malaysia where he obtained a false passport to facilitate his entry into Australia. In the Tribunal’s view, this provided compelling evidence of the applicant’s priorities and cast grave doubt on whether he was fleeing persecution or any other form of harm in China for any reason whatsoever;
c)the applicant was living at his usual address and working in his business at the time of his departure from China which, in the Tribunal’s view, was not the conduct of a person fleeing from a perceived threat in June 2006, let alone longer term persecutory harm. In this connexion, the Tribunal noted the following facts:
i)the applicant indicated twice in his arrival interview that he remained involved in his business and only turned his mind to travelling to Australia in late July 2006; and
ii)his description of a bus journey to Fuzhou when he met the person who arranged his travel to Australia suggested he was going about “business as usual” and simply seized an unexpected opportunity that came his way;
Catholicism
d)the applicant’s failure to mention any concerns of religious persecution at the interview on 4 August 2006, the day of his arrival in Australia, indicates that he did not have any such concerns. Moreover, the Tribunal found the applicant’s account of his church in China, his activities within it and his past experiences to be unreliable;
e)the Tribunal did not accept the following claimed events as having occurred: the applicant’s claimed involvement in 1998 in the establishment of a secret underground group in Fuqing; Geng’s interrogation at some unspecified time; the warning the applicant received from a PSB contact that he was suspected of having organised a church; the disappearance of Geng in 2006; the alleged 2004 conference of local priests which was raided and led to the applicant’s detention for two days and release on payment of a bribe; the alleged 2003 raid of the applicant’s house during church activities. The Tribunal noted:
i)it was inconceivable to the Tribunal that a person who had experienced any or all of these events would fail to mention them on arrival in Australia;
ii)the omission of the claims to which the applicant gave prominence at the Tribunal hearing, namely that his priest disappeared on 6 March 2006 and that he had received a warning from a PSB contact on 8 July 2006 that he was being sought in connection with the church, was a particular concern;
f)if these claims had been true, he would not have said on 4 August 2006 that “Nobody is trying to harm or kill me, but I am concerned because of [my link with Qing]”; (CB 289)
g)the applicant’s evidence at the Tribunal hearing regarding the incidents of past harm was unconvincing noting that although the police approached the applicant’s house in 2003 and 2004 they failed to detect or apprehend any of the numerous people who had exited through the back door, the applicant alone being identified as the culprit and subject to mistreatment. The Tribunal did not find this scenario credible nor the allegation that it happened twice;
h)in his memorandum to the Tribunal dated 9 December 2006, being part of Annexure A to the affidavit of the applicant’s solicitor, Fr Murray refers to the applicant working at an electrical factory but being dismissed once it became known that he had organised workers to come to his rented room to learn about Christianity and that occasionally a priest visited. At the Tribunal hearing, when asked about any adverse developments during 1998 (being the relevant period), the applicant referred to Uncle Geng having been interrogated but did not state then or in any of his submissions to the Tribunal that he lost his job for reasons of religion. The Tribunal considered the allegation of dismissal to be an embellishment of the applicant’s claim and did not accept that he was dismissed for the stated reason in 1998;
i)the knowledge of the applicant by his supporting witnesses appeared superficial and their evidence as to the incident in 2004, when the conference of the priests was raided and the applicant detained, was not based on personal experience;
j)the Tribunal did not accept that the applicant had experienced any past harm whatsoever by reason of his Catholicism;
k)nor did the Tribunal accept that the applicant was an organiser or had any other prominent role with his church or would be so perceived. The Tribunal found the applicant’s evidence that police repeatedly targeted him as an organiser of a house church (or for any other reason) to be unconvincing;
l)the Tribunal did not detect in the applicant’s successive statements any “recollections” of past events or gathering of thoughts, but rather the gradual crafting of new, fabricated claims;
m)the Tribunal found that the applicant manufactured claims to be an “organiser” in order to establish a refugee claim and it did not accept that he was targeted or suffered harm by reason of being an “organiser”;
n)further, in view of its adverse credibility findings in respect of the applicant the Tribunal did not accept that the applicant was targeted or suffered harm for any other reasons associated with his Catholic practice;
o)the preparation of the applicant to become an acolyte suggested that he had taken on a more prominent role and might therefore seek to have a higher profile as a Catholic in the future. However, taking into account the applicant’s previous low profile and the Tribunal’s concerns about his credibility, it was not satisfied that the applicant was engaged in this conduct – his preparations to be an acolyte and any associated activity – otherwise than for the purpose of strengthening his refugee claims. Consequently, this conduct was disregarded by the Tribunal by reason of s.91R(3);
p)although the Tribunal accepted that the applicant’s religious commitment may have intensified in immigration detention, observing that social and spiritual support may take on added significance there, it did not consider that the applicant had developed a genuine and sustained interest in taking on a more formal or prominent role in the Catholic church and his interest in such roles (which expressly did not include the applicant’s preparations to be an acolyte and any associated activities) was the product of his immediate environment and circumstance and did not form the basis of any higher profile future conduct were he to return to China;
q)by reference to independent country information, the Tribunal found that Catholic parishioners such as the applicant did not face a real chance of persecution in the applicant’s district of Fujian, without more;
Falun Gong
r)in relation to the applicant’s alleged association with Falun Gong, the Tribunal did not find his narrative credible nor did it accept that Catholics would allow a Falun Gong practitioner “to hijack their gathering”; (CB 292)
s)the Tribunal did not accept that the applicant’s acquaintance with Qing and the single occasion when Qing promoted Falun Gong activities to Catholic parishioners would result in an arrest warrant two months later;
t)the Tribunal found the applicant’s claims regarding his fears arising from Qing unpersuasive;
Summons
u)the Tribunal examined the duplicate summons provided to it by the applicant and accepted that it was a genuine duplicate summons issued by the Fuqing PSB on 1 August 2006 and in so doing accepted the applicant’s contention “as to its authenticity (as a duplicate)”; (CB 292)
v)although it accepted the duplicate summons as authentic, the Tribunal did not accept that it was a duplicate of an original, properly issued document. It did not accept that there existed a genuine summons that could be executed against the applicant if he returned to China. The Tribunal formed this opinion on the basis of:
i)country information about documentation from China, specifically summonses; and
ii)the applicant’s past involvement in the acquisition and use of false documents in what appeared to the Tribunal to have been a sophisticated international operation;
w)the Tribunal did not accept the summons as evidence of the veracity of the applicant’s claim to be wanted for participation in Falun Gong activities;
x)in light of the Tribunal’s other concerns about the applicant’s claim to be wanted for participation in Falun Gong, it dismissed the document as untruthful;
One child policy
y)the Tribunal did not find it credible that the applicant would leave his wife running their business if she faced a real chance of being forced to have a late-term abortion and it did not accept that the applicant had any genuine or well-founded fear of persecution arising from the fact of the birth of an out-of-plan child noting:
i)the applicant made no mention of any such concern at his arrival interview and only mentioned it when prompted by the Tribunal;
ii)it did not accept that the applicant would leave his wife entering the third trimester of her pregnancy to run their business if she stood a real chance of persecutory harm in the form of an actual penalty or forced sterilisation; and
iii)given that country information presented a generally benign, if qualified, picture, the applicant’s apparent lack of priority to this issue was relevant and revealing;
Sur place claims
z)the Tribunal was satisfied that the contents of the applicant’s protection visa application would remain confidential and not come to the attention of Chinese officials unless the applicant chose to reveal it;
aa)the Tribunal was also satisfied that there were no other circumstances in Villawood Immigration Detention Centre that gave rise to a real chance of persecution; and
Future political activities
bb)given that the applicant had displayed no political interest or knowledge and had not presented evidence of any past political engagement, the Tribunal did not accept the applicant’s claims that he would be politically active in the future with the consequence that he would face a real chance of resulting harm.
In conclusion, the Tribunal said:
The Tribunal accepts that the applicant is a low-profile Catholic, living in a locality where such persons have not experienced and do not face a real chance of prospective persecution. The Tribunal does not accept that the applicant has suffered any past harm for reason of his Catholicism; on the contrary, his opening of a new business in October 2005, his past conduct and his travel arrangements (set out in the Tribunal’s s.424A letter) display a confidence that is inconsistent with that of a genuine refugee. The Tribunal accepts that the applicant continues to practice [sic] as a Catholic in Australia, but finds that his recent activity (preparing to become an acolyte) is not based on a genuine intensification of his faith, and will not result in any future conduct in China that might attract adverse attention. The Tribunal accepts that he is the father of a second child, but does not accept that this – alone, or in combination with his Catholic faith – results in any real chance of persecutory harm. It also accepts that the applicant may wish to have a third child, but it does not detect in the enforcement of the relevant laws the severity or discriminatory elements needed to establish persecution. The Tribunal does not accept that the applicant has any actual or imputed association with Falun Gong, or any political interests. (CB 296)
The Tribunal found that neither:
a)the applicant’s Catholic faith and the mere fact of being a low-key Catholic parishioner in his home area; nor
b)his imputed association with Falun Gong; nor
c)his fatherhood of a second child in non-compliance with China’s birth control policies; nor
d)an imputed anti-government political opinion based on the fact of his protection visa application; nor
e)his planned participation in anti-government protests if he returns to China
established a real risk of prospective persecution for a Convention reason, either individually or cumulatively.
Proceedings in this Court
The grounds of the amended application can be summarised as follows:
a)The Tribunal misconstrued s.91R(3) by
i)disregarding the conduct of persons other than the applicant which resulted in the applicant being trained as or becoming an acolyte;
ii)disregarding conduct in which the applicant may engage on return to China;
iii)finding that the conduct which led to the applicant becoming an acolyte and/or intensifying his commitment to the Catholic faith was not undertaken otherwise than for the purpose of strengthening the applicant’s refugee claim;
b)the Tribunal denied the applicant procedural fairness and/or was in breach of s.425 by not putting to the applicant for comment the point that some or all of the religious activities in Australia of the applicant (and others) could be disregarded pursuant to s.91R(3) on the basis that they were undertaken in whole or in part to advance the applicant’s claim to be a refugee;
c)the Tribunal breached s.425 of the Act (in other respects); and
d)the Tribunal erred by:
i)unreasonably refusing to inquire as to the authenticity of an original document submitted by the applicant – being a summons served by the Fuqing Public Security Bureau; and
ii)unreasonably refusing to return the original of that summons to the applicant so he could obtain and adduce evidence in support of the summons’s genuineness.
Dealing with each of these grounds in turn:
(a) The Tribunal misconstrued s.91R(3) by
Disregarding the conduct of persons other than the applicant which resulted in the applicant being trained as or becoming an acolyte
Section 91R(3) provides:
For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The applicant argues in his written submissions as follows:
The evidence before the Tribunal indicates that the activities “associated” with the Applicant’s “preparations” and his becoming …“an acolyte” involve actions taken by the Applicant as well as actions taken by others. Actions taken by others include:
a. the observations made by “Catholic visitors and by fellow detainees” of the Applicant’s “knowledge and commitment” to the Catholic faith;
b. the consideration by, as well as the decision of, relevant persons to “[chose [sic] the Applicant] from among his fellow detainees to prepare to act ac [sic] acolyte”;
c. the actions taken by relevant persons to “prepare” the Applicant “to become an acolyte” – including training etc;
d. the considerations by, as well as the decision of “the Catholic Chinese community in VIDC [to select the Applicant] to be acolyte, when his predecessor left the Centre”; and
e. the continued support of relevant persons to allow the Applicant to maintain his position as acolyte. (emphasis in original)
The applicant submits that the Tribunal disregarded not only the conduct of the applicant, but also the conduct of third parties associated with the applicant becoming an acolyte, although the section does not require any more than that the applicant’s conduct be disregarded.
Although at CB 291 the Tribunal did say that s.91R(3) required it to disregard the applicant’s preparations to become an acolyte, at CB 296 it went further and made a positive finding that these activities were not based on a genuine intensification of the applicant’s faith. In circumstances where the underlying conduct of the applicant was dismissed as false, any reference to third party involvement in that conduct would be of no practical utility to the Tribunal’s reasoning.
Any connection which third parties might have to the applicant’s conduct in question is meaningless without reference to that conduct. Even were the Tribunal to have regard to the actions or observations of third parties, as advocated by the applicant, it would only be in the context of the conduct of the applicant which it dismissed as not genuine. As a result, the Tribunal would not be in error by disregarding such conduct of third parties even if it were to have done so on this occasion. But a proper consideration of the Tribunal’s decision does not reveal that it did, in fact, disregard the involvement of third parties. The better view would be that, having reached an unfavourable view of the relevant conduct of the applicant, any involvement by third parties was of no assistance to the Tribunal in determining whether the applicant had a well-founded fear of persecution by reason of his religion and thus their conduct was not referred to in its reasons: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
Disregarding conduct in which the applicant may engage on return to China
The applicant submits that the Tribunal could not disregard, by reason of s.91R(3), actions which the applicant might take in the future, outside Australia, as a result of becoming or being an acolyte in Australia.
This submission misconstrues the Tribunal’s findings. The Tribunal made a positive finding at CB 297 that the applicant would not engage in any conduct in the future outside Australia as a result of him preparing to be an acolyte in Australia. Consequently, this ground is not made out.
Finding that the conduct which led to the applicant becoming an acolyte and/or intensifying his commitment to the Catholic faith was not undertaken otherwise than for the purpose of strengthening the applicant’s refugee claim
At the outset, it should be noted that, contrary to the applicant’s submission, the Tribunal did not make a positive finding that the applicant’s conduct which led to him
a)becoming an acolyte; and/or
b)intensifying his commitment to the Catholic faith
was not undertaken otherwise than for the purpose of strengthening the applicant’s refugee claim. Although at CB 291 it did say that it was not satisfied that the applicant’s preparations to be an acolyte and any associated activities were undertaken otherwise than for the purpose of strengthening his refugee claims, at CB 296 its actual finding was that his preparation to be an acolyte was not based on a genuine intensification of his faith.
In relation to that stated lack of satisfaction, the applicant submitted that if he had engaged in conduct which was partially for the purpose of strengthening his refugee claim and partially for another purpose then s.91R(3) would not apply to it. The applicant referred to SZIQD v Minister for Immigration & Multicultural Affairs [2006] FMCA 1467. In that case Driver FM discussed whether s.91R(3) applied to the situation where the applicant’s asserted conduct was not undertaken simply for the purposes of strengthening his refugee claim but was, in fact, the sole basis for his claim. Driver FM did not express a concluded view although his Honour did say that it was not entirely clear to him whether s.91R(3) had any application in the circumstances of that case.
In pressing this argument, the applicant has not taken the court to any other authority.
The applicant’s suggested construction of the subsection is not one which is properly available. Section 91R(3)(b) talks of the applicant engaging in conduct “otherwise than for the purpose of strengthening” his or her refugee claim. The paragraph should be understood as referring to the applicant engaging in conduct for reasons other than the purpose of strengthening his or her refugee claim. If conduct is undertaken for reasons other than a particular reason then that particular reason is not one of the reasons motivating the conduct. But if a particular reason is one of the reasons motivating the conduct then it could not be said that the conduct was engaged in “otherwise than” for that reason. That is to say, if the strengthening of the applicant’s claim to be a refugee is one reason for the conduct then s.91R(3) applies.
This interpretation is supported by the contents of the Explanatory Memorandum to the Migration Legislation Amendment Bill (No. 6) 2001 which became the Migration Legislation Amendment Act (No. 6) 2001 and which inserted s.91R into the Act. Paragraphs 25 and 26 of that Explanatory Memorandum state:
New subsection 91R(3) applies to sur place claims. It is generally accepted that a person can acquire refugee status sur place where, as a consequence of events that have happened since he or she left his or her country of origin, he or she has a well-founded fear of persecution upon return to that country. Difficulties have arisen in cases where Australian courts have found that a person may act while in Australia with the specific intention of establishing or strengthening their protection claims and this intention cannot be taken into account in assessing the existence of protection obligations under the Refugees Convention.
Actions undertaken intentionally to raise the risk of persecution or create the pretext of such a risk, raise also serious questions about the presence of subjective fear in the mind of the protection visa applicant. In order for a fear of persecution to be well founded, it must be both objectively and subjectively based. Under new section 91R, for the purposes of the application of the Act and the regulations to a particular person, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister that he or she engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention.
The Explanatory Memorandum makes it clear that the subsection was intended to address conduct intentionally undertaken to establish or strengthen a claim for protection. The Explanatory Memorandum does not suggest that the object of the amendment was limited to conduct undertaken solely for the purpose of establishing or strengthening a claim for protection. It is sufficient that the conduct is undertaken partially with that intention.
Therefore, even were the Tribunal to have made the finding which the applicant alleges was made, the evidence of more than one motivation for the conduct would not assist him. Consequently, this ground is not made out.
(b) the Tribunal denied the applicant procedural fairness and/or was in breach of s.425 by not putting to the applicant for comment the point that some or all of the religious activities in Australia of the applicant (and others) could be disregarded pursuant to s.91R(3) on the basis that they were taken in whole or in part to advance the applicant’s claim to be a refugee
Section 425(1) provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The applicant submitted that the Tribunal’s finding that his preparation to become an acolyte was not undertaken for a purpose otherwise than to strengthen his refugee claim was an issue which should have been put to him.
As already discussed at [19] above, the Tribunal did not make a finding of the nature asserted by the applicant. Rather, at CB 291 the Tribunal concluded that it was not satisfied on the information before it that the applicant engaged in certain religious activities “otherwise than for the purpose of strengthening his refugee claims” and at CB 296 made a positive finding that his preparation to be an acolyte was not based on a genuine intensification of his faith.
Even so, the fact that there was no finding quite of the sort asserted by the applicant does not mean that the applicant’s religious conduct might not present an issue comprehended by s.425.
In order to determine whether there was a breach of s.425, it is first necessary to determine whether there was an issue arising in relation to the decision under review in respect of which the Tribunal did not invite the applicant to appear before it to give evidence and present arguments. The applicant asserts that there was such an issue, being the Tribunal’s “point that some or all of the religious activities in Australia of the applicant (and others) could be disregarded pursuant to s.91R(3) on the basis that they were taken in whole or in part to advance the applicant’s claim to be a refugee”. The question is whether that “point” was an “issue”.
In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63, the Tribunal’s decision was quashed because
The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review. [44]
The conclusion to be drawn from SZBEL is that the issues arising in relation to the decision under review, in respect of which s.425 requires that the applicant be given an invitation to give evidence and present arguments, are the ones which will determine the outcome of the application. In practice, evidence and submissions are likely to be sought in respect of a wider range of issues but there will be error if evidence and submissions are not sought in respect of, at least, the issues which are determinative of the application.
The applicant submitted that at its hearing
a)the Tribunal had invited the applicant to make further submissions after the hearing on the issue of when Catholic masses are celebrated at Villawood Immigration Detention Centre; and
b)the Tribunal had also said that if it needed to write to the applicant it would do so very soon and the applicant would be given an opportunity to respond.
In NBID v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 653, to which the applicant took the Court, Barnes FM found that the Tribunal had indicated to that applicant that it would not arrive at its decision until it put certain matters to her, should it have considered that to be necessary. In that case, the Tribunal foreshadowed that it would let the applicant know about any problems. Barnes FM concluded that this was in order to afford the applicant the opportunity to put more information before the Tribunal and address such problems as she wished. In NBID, towards the end of the hearing, the Tribunal stated that it did not have any more questions at that stage:
I won’t decide what decision to make until after I receive some of those statements. If I have any problems I will put them to you – ok. [27]
As in NBID, the Tribunal’s comment in this case:
If I need to write to you I’ll do so very soon. You’ll be given an opportunity to respond to them (transcript page 40)
indicated that procedural fairness might require some further step to be taken and that if the Tribunal was not satisfied by the material provided by the applicant, such steps would be taken by contacting the applicant so that certain matters could be addressed (NBID at [44]).
In this case the issue of the applicant becoming an acolyte did not emerge until after the 9 October 2006 hearing and so the relevance of the Tribunal’s comment quoted at [34] above is not obvious. This is particularly so as the issue was raised by the applicant himself through the open letter from Fr Murray dated 23 October 2006 (CB 194) which was attached to the letter from the applicant’s solicitors to the Tribunal dated 26 October 2006 (CB 188-192) and also by the memorandum from Fr Murray to the Tribunal dated 9 December 2006 which is now part of Annexure A to the affidavit of the applicant’s solicitor in these proceedings.
Regardless of what the Tribunal said to the applicant concerning whether it believed it needed to write to him for clarification of issues arising out of the hearing, if it had no duty to put matters to him for comment, then such disappointed expectation as the applicant may have had was of no significance because the applicant’s opportunity to be heard was not adversely affected: Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at 12-14 [34], [36]-[38]; McHugh and Gummow JJ at 34-35 [105]-[106]; Hayne J at 38 [122]; Callinan J at 48-49 [149]-[154]. As Gleeson CJ said at 12 [34]:
… what must be demonstrated is unfairness, not merely departure from a representation.
In SZBEL, the High Court quoted what was said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 591-592, by the Full Court of the Federal Court:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added by High Court)
The High Court did not adopt that analysis holding, at least in relation to s.425 of the Act, that the obligation to bring issues to the attention of an applicant was not qualified in the manner expressed in Alphaone. In SZBEL, the High Court said at [33]-[35]:
The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to "the issues arising in relation to the decision under review" is important.
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
The Tribunal accepted the applicant’s evidence that he was preparing to become an acolyte. Fr Murray’s memorandum of 9 December 2006 suggests that the applicant had already assumed that role but nothing turns on the Tribunal’s failure to note this. Fr Murray’s correspondence required the Tribunal to weigh the credibility of the applicant’s religious commitment as evidenced by his acolyte status and it also presented the Tribunal with an issue concerning whether it was satisfied that this conduct was engaged in otherwise than for the purpose of strengthening the applicant’s claim to be a refugee.
The operation of s.91R(3) had not been an issue before the Minister’s delegate. Or, put another way, until the solicitor’s letter of 26 October 2006 enclosing Fr. Murray’s memorandum of 23 October 2006, there had been no question of the applicant having a need to satisfy the Tribunal, pursuant to s.91R(3), that certain of his conduct was engaged in otherwise than for the purpose of strengthening his claim to be a refugee.
The Act created that need for satisfaction of the Tribunal by requiring that it be a matter to be specifically addressed in the circumstances of this application. The need to satisfy the Tribunal that his conduct in becoming or being an acolyte was engaged in otherwise than for the purpose of strengthening his claim to be a refugee was an issue which arose in relation to the decision under review. If it was an issue which attracted the operation of s.425, the fact that it was an issue created by the statute would not relieve the Tribunal of the obligation to put the applicant on notice of it – the High Court’s consideration of Alphaone and its reasons quote above at [38] make this clear. But unless it was also an issue which was determinative of the claim, it would not attract the operation of s.425.
It was not such an issue. The determinative issue was not whether the Tribunal had to be satisfied under s.91R(3) but whether the applicant’s progression to acolyte represented a genuine intensification of his faith. The conduct in question was disregarded by the Tribunal in determining whether the applicant had a well-founded fear of persecution, not merely because s.91R(3) required this in the circumstances, which was not an issue relevant to the Tribunal’s decision, but because the conduct was found by the Tribunal to not represent a genuine intensification of the applicant’s faith, which was an issue relevant to the Tribunal’s decision.
In relation to whether there were any unfulfilled s.425 obligations, the applicant’s focus on s.91R(3) and the requirement to satisfy the Tribunal pursuant to that sub-section, failing which it would have to disregard the conduct in question, overlooks the fact that the question of the applicant becoming an acolyte was raised by the applicant because it was included in the material he submitted in support of his claim to be a genuine and observant Catholic.
The principal issue in this part of the applicant’s case was whether the applicant’s level of commitment to Catholicism was such as to justify a well-founded fear of persecution. That this is so is seen in the letter from the applicant’s solicitor to the Tribunal dated 11 December 2006, enclosing Fr Murray’s memorandum of 9 December 2006, being part of annexure A to the affidavit of the applicant’s solicitor, which letter says that Fr Murray’s memorandum
… is an assessment of the Applicant’s Catholicity.
The evidence of Fr Murray which was advanced by the applicant was addressed to this issue of whether the applicant’s level of commitment to Catholicism was such as to justify the alleged fear of persecution.
The determinative issue here was the genuineness of the applicant’s religious commitment not whether the Tribunal had to satisfy itself pursuant to s.91R(3). The decision on this issue was a finding drawn from the material before the Tribunal and was the product of the Tribunal’s consideration. As such, its finding did not amount to an issue as that word is understood in the context of s.425. As the High Court said in SZBEL’s case at [48]:
… as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
"the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Consequently the “point that some or all of the religious activities of the applicant (and others) could be disregarded pursuant to s.91R(3) on the basis that they were taken in whole or in part to advance the applicant’s claim to be a refugee” was not a determinative issue in the proceedings. Rather, the determinative issue was the genuineness of the applicant’s religious commitment as evidenced by his progression to acolyte. This was an issue in respect of which the applicant gave evidence and presented arguments. Consequently, this asserted ground of review does not disclose a breach of s.425.
(c) The Tribunal breached s.425 of the Act (in other respects)
In respect of this ground the applicant asserts that given that:
a)the applicant presented his refugee claim immediately on arrival in Australia, and normally this would speak in the applicant’s favour, but because
b)the information before the Tribunal did not reveal whether the applicant initiated the request upon his arrival at the border or only after his false passport was detected, the Tribunal considered this factor to be of little assistance in its assessment,
the Tribunal’s conclusion that it could not put any particular weight on the immediacy of the applicant’s refugee claims was, in itself, an issue upon which the applicant should have been invited to comment.
In his written submissions the applicant says at paragraph 65:
Based on what the Delegate had decided, and absent the matter being raised by the Tribunal, the Applicant was entitled to assume that the timing of his application was not an issue in relation to the decision under review.
The applicant also suggests that the inability of the Tribunal to draw an inference favourable to the applicant by reason of his lodgement of his refugee claim - his application form being lodged within a week of his arrival in Australia - was an issue because the Tribunal made adverse findings as to the applicant’s credit in other portions of its decision.
What the applicant seeks to do in this ground is to make an issue out of a non-issue. What the Tribunal decided was that it could not draw any particular conclusion from the promptitude of the applicant’s protection claim and thus the issue was put to one side. Had it concluded that some inference adverse to the applicant’s claim could have been drawn from the applicant’s conduct in relation to the making of his protection claim (not being something which was apparent from the delegate’s decision) and which might be taken into account by the Tribunal when arriving at its decision then that would have been an issue in respect of which s.425 would have required the Tribunal to give the applicant an opportunity to comment.
However, the circumstances in which the protection claim was originally made meant that no inference could be drawn from the promptness with which it was made and no issue arose out of those facts. Consequently, there was no breach by the Tribunal of s.425 in this connection.
(d) The Tribunal erred by
Uunreasonably refusing to inquire as to the authenticity of an original document submitted by the applicant – being a summons served by the Fuqing Public Security Bureau
The applicant submits that because the Tribunal could have readily obtained an analysis of the summons which the applicant received from China and supplied to the Tribunal, it should have done so and its failure to do so amounted to jurisdictional error.
Although the applicant relied on several authorities suggesting that an administrative decision-maker would, in some circumstances, be obliged to undertake inquiries, the only one of those authorities with true relevance to these proceedings was Applicant M164/2002 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 16. The applicant quoted Lee J at [75] and [76] (Tamberlin J agreeing) saying:
Although it is plain that s 427(1)(d) of the Act provides the Tribunal with a discretion to initiate an investigation and receive a report and does not impose a duty on the Tribunal to do so, it is an empowering provision that is intended to assist the Tribunal to better perform its duties as an inquisitorial body to inquire, to be informed, and to decide.
If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).
The applicant did not refer to two relevant decisions of the High Court, nor are they referred to in the decision of the Full Court of the Federal Court in Applicant M164’s case. The first of these is Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 where Gummow and Hayne JJ said at 450-451 [57] and [58], Gleeson CJ agreeing at 438 [1]:
… Those proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant. The tribunal member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The tribunal member has no “client”, and has no “case” to put against the applicant. … Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out …
… The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.
The additional authority not cited by the applicant in these proceedings or in the Full Court’s judgment in Applicant M164/2002 is Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 in which Gummow and Hayne JJ said at 21-22 [42], [43], Gleeson J agreeing at 13 [1]:
The second ground of alleged error amounts to a finding by Selway J that the tribunal was under a duty to inquire as to the effects of PTSD. This is apparent from his Honour's judgment:
But, having found that the [respondent] was suffering from PTSD there was no evidence before the Tribunal which would have enabled it to assess whether or not any of the evidence the [respondent] gave was reliable. Having (wrongly) diagnosed that the [respondent] was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the [respondent's] evidence without evidence as to what effect the PTSD might have on the [respondent's] capacity to give evidence. (Emphasis added)
This ground of error is misconceived for two reasons. First, there was evidence before the tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire.
The situation in these proceedings is distinguishable from that in Applicant M164 where Tamberlin J said at [118]:
I consider that the Tribunal did not properly deal with the claims made by the appellant in this matter. This is because of the critical role played by the finding on credibility and the importance of the letters, which, on their face, are reliable and supportive of the appellant’s case, and because of the failure of the Tribunal to make a number of simple phone calls to verify the authenticity of the documents. The failure of the Tribunal to deal with the case sought to be made by the appellant and the documentary evidence called for findings by the Tribunal as to the authenticity and weight of the documents. This was not done. To some extent, the reasons for decision reflect such a closed state of mind in relation to the claims of the appellant that there was, on the face of the reasons, ostensible bias. Consequently, there was a failure by the Tribunal to properly exercise its jurisdiction in such a way as to give rise to jurisdictional error. The two central documents raised were dismissed in a summary fashion without any proper consideration and the other comments in relation to the newspaper items and the references to "implausibility" support this conclusion. Had these documents been considered or inquiries made regarding their authenticity, there may have been a different finding on credibility.
In this case the Tribunal’s decision to decline to have the document examined does not indicate that it denied the applicant the conduct of a fair proceeding or had a closed mind. It accepted that the document itself was issued out of the Fuqing PSB with the consequence that there was no need for it to be examined for authenticity. The fact that the Tribunal did not accept that it reflected a genuine summons, in the sense that it had been issued by the Fuqing PSB with no intention that it be acted upon or that it was not the manifestation of an actual desire by the Fuqing PSB to arrest the applicant, was not something on which a document analysis would shed any light.
Consequently, the Tribunal was under no obligation to make the inquiries pressed on it by the applicant and no error is demonstrated in relation to this ground.
Unreasonably refusing to return the original of that summons to the applicant so he could obtain and adduce evidence in support of the summons’s genuineness
The purported summons relevantly says in translation:
[SZJZN]:
Because you are suspected of participation in the activities of Falun Gong organization, according to Article 27 of the Security Administration Punishment Law (SAPL). You must come to Shangjing Police Station for questioning by 9.30am on 2 August 2006.
1 August 2006 (CB 117)
The applicant submits that the Tribunal unreasonably refused to return the applicant’s summons in order that he could obtain opinions on it for submission to the Tribunal. The applicant’s solicitors wrote to the Tribunal by letters dated 20 November 2006 (apparently sent by facsimile on 28 November 2006) (CB 246-247) and 20 November 2006 (apparently sent by facsimile on 7 December 2006) (CB 253-254). In those letters the applicant’s solicitors advised the Tribunal that they wished to submit the summons to the Document Examination Unit (“DEU”) of the Department of Immigration & Multicultural Affairs as well as to Mr Chen Yong Lin, a former Chinese consular official. By letter dated 29 November 2006 (CB 251-252), the Tribunal declined the request saying:
… the Tribunal does not consider that the DEU would be able to address the critical issue in this case, namely whether this is an authentic summons issued specifically by the Fuquing Public Security Bureau, or whether its contents are truthful (ie. their veracity)…
The Tribunal notes your wish to also have Chen Yonglin examine the document. It expects, on the limited information before it that any observations from this person would address whether the document appears to conform to usual appearance and form of PRC summonses. This, too, would therefore be of limited probative value to the Tribunal’s inquiry.
It is important to observe that the document in question was asserted by the applicant to be his counterpart copy of the original - see the translation at CB 117.
In its decision record the Tribunal set out its reasoning in relation to declining the request by the applicant for the return of this document in the following terms:
The Tribunal noted the adviser’s insistence that the document be subject to document examination for authentication or, alternatively, that the document be returned to him so he can initiate such an examination. The Tribunal accepts that the document submitted to the Tribunal is a genuine duplicate summons issued by the Fuqing PSB on 1 August 2006, and in so doing accepts the applicant’s contention as to its authenticity (as a duplicate). For this reason, it considers any further examination of the document unnecessary. It also considers that returning the document to the applicant during the course of the review, for the express purpose of initiating document examination, served no purpose as it would result in unnecessary further enquiry and delay, and create a false impression about the relevant issue.
While the Tribunal accepts the duplicate summons as authentic, it does not accept that it is a duplicate of an original, properly issued document. In other words, it does not accept that there exists a genuine summons that could be executed against the applicant if he returns to China. The Tribunal forms this opinion on the basis of the country information put to the applicant about documentation from China, specifically summonses, as well as the applicant’s past involvement in the acquisition and use of false documents, in what appears to have been a sophisticated international operation. The Tribunal therefore does not accept this document as evidence of the veracity of the applicant’s claim to be wanted for ‘participation in the activities of Falun Gong organisation’. In the light of its other concerns about this claim, it dismisses it as untruthful. (CB 292-293)
The Tribunal concluded that there was no genuine summons in existence and that although the document which was provided to it by the applicant was actually issued by the Fuqing PSB it was bogus nevertheless.
Given that the Tribunal accepted that the document was issued by the Fuqing PSB and that the remaining question was whether it was intended to be acted upon, nothing would have been served by submitting the document to document examiners. Thus, in this respect, no error is demonstrated in the Tribunal’s decision not to return the original document to the applicant.
However, no such conclusion can be drawn in relation to what Mr Chen might have said. Mr Chen’s consideration might encompass a number of considerations in respect of which the Tribunal could only speculate. Moreover, had the document been returned, the applicant may have wished to have had it studied by yet more people. By denying the applicant’s request for the return of the document the Tribunal potentially prevented him from using the document as evidence corroborative of his claims. But whether any such evidence or arguments would have been presented to the Tribunal can only be speculated upon in these proceedings too because there is no evidence on the issue before the Court.
At the hearing in this Court the applicant sought to tender the document in question although following objection by the first respondent, the tender was rejected. It would therefore appear that the document had been returned to the applicant at some point. However, even if it had not been, it could have been obtained from the Tribunal for the purposes of these proceedings by an order of the Court. These facts are significant because notwithstanding the accessibility of the document, no evidence has been adduced by the applicant to show that the Tribunal’s refusal to return the document prior to its determination actually prevented the applicant from giving evidence or presenting arguments in relation to the document and in support of his claims.
There is nothing before the Court to suggest that the Tribunal’s refusal to return the summons prevented the applicant from obtaining the sort of evidence which would have given the document added probative value. In the absence of such evidence, it cannot be concluded that the Tribunal did not give the applicant a sufficient opportunity to give evidence, or present arguments, about an issue arising in relation to the decision under review.
In the absence of such evidence to show that there has been a breach of s.425, no jurisdictional error has been demonstrated in relation to this asserted ground of review.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 29 June 2007
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