SZKHC v Minister for Immigration

[2008] FMCA 1205

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKHC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1205

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal properly dealt with applicant’s claimed conduct in Australia – whether Tribunal properly dealt with section 91R(3) of the Act – Tribunal failed to address the applicant’s claim to have practiced Falun Gong in Australia – Tribunal failed to properly apply section 91R(3) – jurisdictional error – application allowed.

Migration Act 1958, ss.424A, 91R, 65, 36

SZKHC v Minister for Immigration and Anor [2007] FMCA 2006
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
SZJHG v Minister for Immigration and Citizenship [2007] FMCA 2050
SZKGF v Minister for Immigration and Citizenship (2008) FCAFC 84

Applicant: SZKHC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 730 of 2007

Judgment of: Nicholls FM

Hearing date: 11 April 2008

Date of Last Submission: 29 July 2008

Delivered at: Sydney

Delivered on: 28 August 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearing for the Respondents: Ms N Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ of certiorari issue, quashing the decision of the second respondent.

2. A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 730 of 2007

SZKHC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 2 March 2007, and amended on 8 May 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 9 January 2007 and handed down on 30 January 2007, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. The first respondent has filed a bundle of relevant documents in this matter (the Court Book – “CB”) from which the following background can be ascertained. 

2. The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 31 August 2006 and applied for a protection visa in September 2006 (CB 1 to CB 27). This included a statement by the applicant as to his claims for a protection visa (CB 27).

Applicant’s claims to protection

1. The applicant’s claims to protection were:

   1)He was born into an intellectual family and his family had suffered persecution from the Chinese government during, and since, the Cultural Revolution.

   2)In 1989 he participated in demonstrations and activities in support of student movements. He was criticised by his employer and suffered mental torment.

   3)In 1996 he became a member of Falun Gong.

   4)In early 2006 he was targeted in an investigation because of his Falun Gong activities and was tortured by police. He therefore left China and came to Australia to seek protection.

2. The application was refused by a delegate of the first respondent on 3 October 2006 (CB 28 to CB 40). The delegate variously found that the applicant’s capacity to leave China legally and his capacity to obtain a passport did not support his claim that he was of adverse interest to the authorities, and that it was improbable, based on country information available to him, that dissidents on “wanted lists” would be able to exit on passports issued in their own names.

3. In relation to the applicant’s claims to have been a Falun Gong practitioner of interest to the authorities, the delegate reasoned that, with reference to independent information before it, his profile was not such that it would lead to a real chance of Convention-based persecution should he return to China. Further, had the applicant become a target for investigation in early 2006, and had he been tortured, as he claimed, the applicant’s ability to obtain a passport legally and to depart China made it difficult to accept this claim.

4. Relevant to one of the issues before the Court now, as it arises from the Tribunal’s decision, is the delegate’s finding that there was no evidence before him as to whether the applicant had been in contact with local Falun Gong groups in Australia, or whether he was currently practising Falun Gong.

5. The applicant’s claim to have come from a family that had suffered persecution from the authorities since the time of the Cultural Revolution was rejected by the delegate, with the finding that the applicant was not of interest to the authorities, and the delegate rejected the applicant’s claims that he had suffered harm following his participation in pro-student demonstrations and activities in 1989 for similar reasons.

The Tribunal

1. The applicant applied for review on 2 November 2006 (CB 41 to CB 44). The Tribunal wrote to the applicant by letter dated 14 November 2006 (CB 47 to CB 49), seeking his comments (presumably pursuant to s.424A of the Act) on independent country information relating to obtaining passports in China, the applicant’s capacity to obtain such passport in the circumstances that he claimed, and the applicant’s capacity to exit China, unhindered, in light of independent country information that indicated that a person of interest to the authorities would not be able to do so. The applicant responded by letter dated 6 December 2006 (CB 52).

2. The applicant was also invited, and appeared before the Tribunal at a hearing held on 14 December 2006 (CB 56). The Tribunal’s account of what occurred at the hearing is contained in its decision record (CB 65 to CB 74 – CB 69.3 to CB 71.8 for what occurred at the hearing).

3. At the hearing the applicant said he practised Falun Gong in Australia since his arrival.

4. The Tribunal affirmed the decision under review. It rejected the applicant’s claims to have been persecuted in China because of his Falun Gong practice. It found, based on the evidence that the applicant gave at the hearing, that he was not a credible witness (CB 72.8):

   “The Tribunal is not satisfied when looking overall at the applicant’s claims to be a persecuted FG practitioner in China (PRC) that the applicant ever was an FG practitioner in China (PRC). The Tribunal finds that the ability of the applicant to perform the FG exercises does not mask the fact that he has no more than a peripheral knowledge of crucial aspects of FG practice and belief. The Tribunal finds from this observation that the applicant is a credible witness. The Tribunal is not satisfied based on the heretofore mentioned finding that the other claims of the applicant (that he suffered other persecutions) are also valid. These claims include that he suffered severe mental torment from the company for whom he worked. In early 2006 he claimed he became a target for investigation for his FG activities and that he was tortured to make him confess.”

5. I should just note that I accept the submission subsequently made by the first respondent that, in the context of the Tribunal’s decision record, when read plainly as a whole, the omission of the word “not” (“that the applicant is [not] a credible witness”) was a typographical error or omission, and that the Tribunal plainly said that it found the applicant not to be a credible witness.

6. The Tribunal also found that the applicant’s capacity to obtain a passport and his unhindered exit from China meant that he was not of adverse interest to the authorities at the time he left China (CB 73.8). The Tribunal was not satisfied with the applicant’s claim that he exited Beijing airport by bribery (CB 73.1), nor that he secured his passport “via a corrupt intermediary and fraud”, basing its conclusion on independent information available to it (finding the applicant’s claims to be implausible in this regard) and “his lack of credibility as a witness”.

7. How the Tribunal dealt with the applicant’s claim to have practised Falun Gong in Australia is the subject of consideration below.

8. Ultimately, the Tribunal found that it was not satisfied on the “evidence as a whole” (CB 74.1) that the applicant had a well-founded fear of persecution. It was not satisfied that the applicant was a person to whom Australia protection obligations under the Refugees Convention. It therefore affirmed the decision under review.

Application to the Court

1. The applicant has filed an amended application in this matter in which the grounds are stated as follows:

   “The Applicant withdraws the grounds stated in the Application filed on 2 March 2007 and in lieu thereof provides the following grounds:

   1) The decision of the Second Respondent dated 9 January 2007 is void for jurisdictional error in that the Tribunal did not determine the whole of the Applicant’s claim made in the application for a protection visa dated 6 September 2006.

   Particulars

   (1)The Applicant’s claim was that he had a well-founded fear of persecution arising out of his experiences in the People’s Republic of China for the reason of:

   a.      his practice and membership of Falun Gong;

   b. his membership of an intellectual family persecuted during the Cultural Revolution; and

   c. his involvement in political demonstrations for freedom and democracy in China.

   (2)The Tribunal made findings, and drew conclusions from those findings, only in relation to the Applicant’s practice and membership of Falun Gong.

   (3)The tribunal failed to make any findings in relation to the other two grounds put forward by the Applicant in support of his application.

   (4)The Tribunal failed to determine the whole of the application”.

Before the Court

1. A hearing before the Court was held in this matter on 30 November 2007. The applicant appeared in person. He was assisted by an interpreter in the Mandarin language. The first respondent was represented by Counsel.

2. After hearing submissions from both sides on that day, I reserved my judgement and intended to hand down judgement on 7 December 2007 (the parties were so advised).

3. Immediately following the hearing, however, I was made aware of difficulties with the level of interpretation provided at the hearing before the Court to the applicant. I therefore determined that the applicant should have the opportunity of another hearing (see SZKHC v Minister for Immigration and Anor [2007] FMCA 2006).

4. On 7 December 2007 the applicant did not appear, and a new hearing date was ultimately set down for 11 April 2008. The applicant appeared on that date. He was again assisted by an interpreter in the Mandarin language. Ms N Johnson represented the first respondent.

5. At the hearing the applicant claimed that the Tribunal:

   1)Did not consider his application in accordance with s.91R of the Act.

   2)Did not consider the correct independent information. (I understood this to be, in context, the information relied on by the Tribunal on the issue of the applicant’s ability to leave China using his own passport).

   3)Had found favourably in “many similar cases” and that its failure to find favourably to him, therefore, demonstrated its bias.

   4)Rejected his application based on his answers given at the hearing, and did not provide “adequate reasons and evidence” in rejecting his application.

   5)Relied on “irrelevant information” and rejected his application on irrelevant materials.

   6)Did not accept that he was a Falun Gong practitioner, and that this conclusion was based on the Tribunal’s assumptions.

   7)Did not consider that he had attended Falun Gong activities in Australia which may lead to his being persecuted on return to China.

6. Ms Johnson made submissions on the behalf of the first respondent. During the course of the hearing, I raised the questions, first, whether the Tribunal properly dealt with the applicant’s claim to have practised Falun Gong in Australia and, second, whether it properly dealt with s.91R(3) of the Act. I gave the parties the opportunity to make further written submissions on these issues. Nothing further was received by the applicant. Further submissions were received from the first respondent (on 18 April 2008) on the issue of s.91R(3). Nothing was received from the applicant in reply. Written submissions were received by the applicant in relation to the issue of s.91R(3) on 29 April 2008.

7. At the time of considering my judgement, the Full Federal Court handed down its judgement in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 (“SZJGV”), which was concerned with a proper understanding of s.91R(3). In these circumstances, I gave the parties a further opportunity to make supplementary submissions. These were received from the Minister on 29 July 2008. Nothing further was received from the applicant.

Section 91R(3) and SZJGV

1. As the first respondent’s supplementary submissions state, the critical statement of principle in SZJGV appears at [22] of the Full Court judgement:

   “We accept the Minister’s submission that s 91R(3) can only, sensibly, be applied once primary findings of fact have been made. If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin, the Tribunal must decide whether or not that conduct has occurred. If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not paragraph (b) may have application. If it has occurred then consideration must be given to the requirements of s.91R(3). We do not understand the appellants to contend otherwise. Their submissions do, however, overreach when they assert that, if an applicant seeks to rely on his or her conduct in Australia and the Tribunal accepts that such conduct has occurred, the conduct cannot be taken into account ‘at all’ in deciding the application. As the Minister points out, the lodging of an application for a protection visa in which particular claims are made is a relevant matter which is properly to be brought into account. Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged. Once engaged, s 91R(3) precludes the decision maker from having regard to ‘any conduct’ engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee. Inaction can constitute conduct within the meaning of s.91R(3).”

2. The Ministers submissions are that:

   1)While the Full Court accepted the Minister’s submission that s.91R(3) “does not operate” until the primary facts have been found by the relevant decision maker, the Full Court did not apply the section in this way. I saw this with reference to the application of the principles as enunciated in relation to the three matters before the Full Court heard together, and as set out at [27] to [30] of SZJGV. [SZJGV, SZJXO, SZKBK].

   2)Paragraphs [9] and [10] of the first respondent’s supplementary submissions appeared to be a concession that if this Court were to apply the principles enunciated at [22] in SZJGV in the same manner as applied by the Full Court to the three sets of circumstances before them then “the RRT will have contravened s.91R(3) as apparently construed by the Full Court in SZJGV.”

3. I should note, lest there be any doubt, that to the extent that the respondent’s supplementary submissions may (at the very least, by implication) seek that this Court should disregard the examples of how the principles enunciated at [22] should be applied to different factual scenarios (the different factual scenarios that were before the Full Court), then it is not open to this Court to take such a course of action. Plainly, this Court is bound by the statement of relevant principles set out at [22] of SZJGV in relation to the operation of s.91R(3), and must derive guidance from the application of those principles to the different factual scenarios considered by the Full Court.

4. I note also that at [19] of the supplementary submissions, the Minister submits that this Court “ought to be aware that the minister is seeking special leave to appeal the decision in SZJGV.” I did not understand this to be any application for this Court to defer its consideration, and its handing down of judgement in the current matter, in anticipation of such leave being granted, and further guidance being obtained from the High Court. In the meantime, it is trite to say that this Court is clearly bound by what the Full Court said in SZJGV in relation to s.91R(3).

5. In this regard, see, for example, SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91 at [42] to [43].

6. The respondent further submits, however, that there has been no impermissible regard by the Tribunal to the applicant’s conduct in Australia. The submissions rely on circumstances where a distinction may be said to be drawn between what is said to be the act of acquiring knowledge, and the knowledge itself. The submissions posit that possession of knowledge once acquired may be conceptually distinct from the actual conduct of acquiring that knowledge.

7. These submissions are possibly inspired by what the Full Court said in SZJGV at [25]:

   “It may be, in a particular case, as Driver FM was minded to accept in SZIBK and SZGDA, that a distinction might be drawn, for the purposes of s 91R(3) between an applicant’s conduct and the reason or reasons for which that conduct has occurred. It is arguable that the Tribunal is only bound to disregard the conduct. It may be able to rely on the motivation for the conduct for the purpose of bolstering or undermining the applicant’s credibility. Such a distinction may not easily be drawn in many cases. In none of the present cases did the Tribunal either expressly or by implication seek to draw this distinction. A decision on whether or not such a distinction may be drawn for the purposes of s 91R(3) should await a case in which the point is raised.”

8. Whatever the situation in that regard, the respondent relies on Young J (with whom Gyles and Stone JJ agreed) in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [96] that religious conversion was a matter of conscientious belief as distinct from conduct.

9. In support of the proposition that a distinction may be drawn, the respondent relies on SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129. In that case the Tribunal took the view that the applicant’s demonstrated level of knowledge of Falun Gong was not sufficient to establish his claim that he had been a practitioner in China since 2002 as credible (this was said to be similar to the circumstances of the present case). In that case the Tribunal found that the applicant had more recently commenced practice in Australia, and disregarded that activity pursuant to s.91R(3), but still used the knowledge acquired in Australia when assessing the applicant’s overall credibility (see SBCC at [26] to [30]).

1. After setting out the relevant authority, and s.91R(3), the respondent submits, the Full Court in SBCC found that the reasoning of the Tribunal was “clear and open on the evidence” (at [43]) and found no error in the Tribunal testing the applicant’s knowledge in the manner that it did.

2. The respondent submits that the outcome in SBCC (even though the issue of whether the Tribunal had fallen into error by using knowledge acquired in Australia in assessing the applicant’s overall credibility was not argued before it) can nonetheless be “accommodated” with the construction of s.91R(3) as expressed in SZJGV, if the distinction between conduct in acquiring knowledge and the knowledge once acquired is made. In these circumstances, the respondent submits, there has been no impermissible regard by the Tribunal to the applicant’s conduct in Australia in the current case.

Failure to Consider a Claim (or an Integer of a Claim)

1. The difficulty for the respondent, if this distinction is accepted in the current case, is that the Tribunal can be seen to have nonetheless fallen into jurisdictional error of a different type, in that it did not deal with an integer of the applicant’s claim, and one clearly made by the applicant.

2. The applicant claimed to have practised Falun Gong in Australia. The Tribunal’s own account of what occurred at the hearing records, relevantly, the following (at CB 69.4):

   “He said he practised at home privately and in parks in China (PRC) and at the park in Campsie in NSW on Wednesday at 7:30 pm.”

3. Further, at CB 69.5:

   “The Tribunal questioned the applicant on his practices as a Falun Gong practitioner. The Tribunal observed that he had claimed in his submission that he had been a practitioner for 10 years both in China (PRC) and (he confirmed) in Australia since arrival.”

4. The applicant complained in oral submissions before the Court that the Tribunal did not consider that he had attended Falun Gong activities in Australia, and that this could lead to persecution if he were to return to China.

5. In my view, the Tribunal has fallen into error (at least) in two ways.

6. The first is the requirement, and obligation, for the Tribunal to deal with each claim before it, and each integer of a claim, made by an applicant. As was said by Allsop J. (with whom Spender J agreed) in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42]:

   “…To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed …”

7. In NABE v Minister for Immigration Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 the Full Federal Court (per Black CJ, French and Selway JJ) reviewed relevant authorities in relation to the issue of the failure to deal with a claim, express and implied (see [55] to [63]). I note the relevant authorities reviewed there, and in particular I note at [63]:

   “It is plain enough, in the light of Dranichnikov [v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26] that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.”

8. Noting further what was said by the Full Court in that same paragraph:

   “Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):

   ‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’”

9. In the current case the applicant clearly made a claim to have practised Falun Gong in Australia. The Tribunal itself recorded that the applicant made this claim at the hearing conducted with the applicant (at CB 69). The applicant’s claim that he feared harm if he were to return to China because he was a Falun Gong practitioner, and therefore liable to persecutory harm on return for that reason, had two aspects to it. The first was that he had been a Falun Gong practitioner in China for many years. The second was that he continued to be a Falun Gong practitioner since his arrival in Australia.

10. In my view, even a fair reading of the Tribunal’s decision record reveals that the Tribunal addressed the first, but it did not properly address the second aspect of the applicant’s claims.

11. The Tribunal said that it (at CB 71.10): “observes that despite some peripheral knowledge of the FG philosophy and exercises it is unable to be satisfied that the applicant was an overt or prominent FG practitioner in China (PRC).”

12. The Tribunal based this on its view that, at the hearing, while the applicant: “showed some knowledge of FG belief” (CB  72.3), nevertheless: “the Tribunal believes his knowledge of the exercises and some aspects of the FG philosophy could best be described as ‘learnt behaviour.’” This was said by the Tribunal to be “information obtained or learnt in Australia” (CB 72.3).

13. Putting to one side the Tribunal’s failure to explain, or properly address, the circumstances in which the applicant obtained such information in Australia (and not in China), and putting to one side how the Tribunal, in its reasoning, went from the position of saying that the applicant was not an “overt or prominent FG practitioner in China” (CB 71.10), in light of the little (“some”) knowledge he displayed of Falun Gong belief, which was obtained in Australia (CB 72.3), to its ultimate conclusion that it was not satisfied that: “the applicant was ever an FG practitioner in China” (CB 72.9), and even proceeding on the basis that the Tribunal properly dealt with the applicant’s claim to have been a Falun Gong practitioner in China, I cannot see that the Tribunal properly dealt with the other aspect or, integer, of the applicant’s claim, that is, that he was a Falun Gong practitioner in Australia.

14. At CB 72.3 (with reference to the quotes extracted above), the Tribunal cannot be said to have properly addressed the question that it was jurisdictionally required to consider, that is, whether the applicant’s claimed Falun Gong practice in Australia would lead to a well-founded fear of persecution for a Convention reason if the applicant were to return to China. At best, what the Tribunal addressed, at that part of its decision record, is its explanation for the applicant’s capacity to demonstrate “some knowledge of FG belief” at the hearing.

15. At CB 72.7 the Tribunal states:

    “The failure of the applicant to be aware of crucial FG concepts reinforces the Tribunal finding that his FG practice is not genuine and has been appropriated or learnt in Australia for the purposes of giving verisimilitude to his claim to be a China (PRC) citizen FG practitioner of long standing who has been persecuted in China (PRC) for holding and publicly practicing those beliefs. The Tribunal finds, furthermore, that a person with 10 years of claimed FG practice would not exemplify such a poor level of answers and knowledge of FG practice and belief.”

16. Again, in my view, the Tribunal was focused on the applicant’s claim to have been a Falun Gong practitioner in China, and did not address the issue of the applicant claiming to have practised Falun Gong in Australia, and how this may lead (or not lead) to persecutory harm on return to China. This is reinforced by what the Tribunal says next at CB 72.8:

    “The Tribunal is not satisfied when looking overall at the applicant’s claims to be a persecuted FG practitioner in China (PRC) that the applicant ever was an FG practitioner in China (PRC).”

17. Nowhere in the Tribunal’s decision record is there any express finding that the applicant was not a Falun Gong practitioner in Australia, let alone a consideration as to whether such practice of Falun Gong overseas would lead to persecutory harm if he were to return to China, as claimed by the applicant, or at the very least, as it can be said to arise from the circumstances of the applicant’s claims.

18. I did consider whether the Tribunal’s statement that “his FG practice is not genuine” (CB 72.7) could be said to be a finding of greater generality, within which the claim to fear persecutory harm because of Falun Gong practice in Australia could have been subsumed.

19. It is not immediately clear what is meant by the Tribunal’s finding that the Falun Gong practice “is not genuine” (CB 72.7).

20. I am mindful of what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 that Tribunal decision records are not meant to be over zealously scrutinised with an eye finely attuned to error (at [30]).

21. However, I also note what was relevantlysaid by Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]:

    “The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister of Immigration and Ethnic Affairs v Wu Shan Liang in particular at 271 – 272. The phrase ‘beneficial construction’ as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”

[Citation omitted]

1. Even when the Tribunal’s decision record is read fairly, there is some uncertainty and ambiguity as to what the Tribunal found in this regard. At best, it can be said that the Tribunal found that the applicant’s claim to have practised Falun Gong in China is “not genuine” in the sense that he did not engage in that practice (“not satisfied ... that the applicant ever was an FG practitioner in China” (CB 72.9)) for the reason that his performance at the hearing, where he “showed some knowledge of FG belief” (CB 72.3) was because he had “appropriated or learnt in Australia” this knowledge.

2. The Tribunal does not say how this knowledge was “appropriated or learnt in Australia”. Particularly, the Tribunal does not say whether it was: “appropriated or learnt” on the occasions that the applicant practised FG” at the park in Campsie in NSW on Wednesday at 7:30pm, or otherwise from his practice of Falun Gong in Australia, which the applicant “confirmed” at the hearing that he had practiced in “since his arrival” in Australia.

3. The ambiguity in the Tribunal’s reasoning is, to some significant part, revealed because the Tribunal made no clear finding as to whether it accepted that the applicant did practise Falun Gong in Australia, as he had claimed. Did the Tribunal mean to say that the applicant was “not genuine” in his Falun Gong practice as it related to Australia, in the sense that he was not committed to Falun Gong, but merely went through the motions of somehow obtaining such knowledge, (for example, by reference to relevant sites on the internet) so that he could show “some knowledge of FG belief in the Tribunal’s questioning of him”, or did it mean that he only practised in Australia (that is, that he actually did practice, in that he genuinely did attend Campsie at the park at 7:30pm on Wednesday) only to give a “verisimilitude to his claim to be a China (PRC) citizen FG practitioner of long-standing who has been persecuted in China (PRC)” (CB 72.7).

4. What is clear, in my view, is that the Tribunal failed to properly address the applicant’s claim to have been a Falun Gong practitioner in Australia since his arrival, and that this would give rise to a well-founded fear of persecutory harm if he were to go back to China. In my view, the Tribunal was focused on what it saw as the motivation for the applicant’s gaining of “some knowledge of FG belief” in Australia, but did not focus (at all, let alone, properly) on the applicant’s clear claim to have practised Falun Gong in Australia, and that this was reason for his suffering persecutory harm should he return to China. This failure reveals jurisdictional error on the part of the Tribunal.

Section 91R(3)

1. The second error on the part of the Tribunal is revealed by its failure to properly apply s.91R(3) of the Act to the circumstances before it, as explained in SZJGV.

2. Whatever the first respondent’s view of what the Full Court said in SZJGV, this Court is bound, and plainly will follow what was said by the Full Court in its consideration of the current case

3. At [22] the Court set out the steps that the Tribunal is required to follow in “sensibly” applying s.91R(3):

   1)That the section can only be applied once primary findings of fact have been made.

   2)If an applicant claims to have engaged in conduct in Australia, which causes him or her to fear persecution, if returned to his or her country of origin, the “Tribunal must decide whether or not that conduct has occurred”.

   3)If the Tribunal decides that the conduct has not occurred, then there will be nothing to disregard, nor will the occasion arise to determine whether or not paragraph (b) (of s.91R(3)) may have application.

   4)If it has occurred, then consideration must be given to the requirements of s.91R(3).

   5)The Court rejected the proposition (in agreeing with the respondent’s submissions in that case) that conduct cannot be taken into account “at all.”

   6)But once the adjudication process has commenced and primary facts have been found, which includes conduct engaged in by the applicant in Australia, then s.91R(3) is engaged.

   7)“Once engaged, s 91R(3) precludes the decision maker from having regard to ‘any conduct’ engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee.”

4. In my view, the Tribunal has failed in this regard, in addressing the very first issue that it was required to address as set out in the Full Court’s explanation of s.91R(3) above. The applicant claimed to have engaged in conduct in Australia, which caused him to fear persecution if he returned to China. That is, that he practised Falun Gong in Australia. I cannot see that the Tribunal made a finding as to whether or not that conduct has occurred. There is certainly no such express finding. Nor can I see that any such finding can even be implied in what the Tribunal has set out as its analysis and reasoning

5. The respondent submits that there is a distinction to be drawn between the act of acquiring knowledge and the knowledge itself. That is, that the knowledge of Falun Gong, once it was acquired by the applicant “may be conceptually distinct from the conduct” of “acquiring that knowledge”. That is, presumably his claimed Falun Gong practice in Australia (noting that the added difficulty in this case is that the Tribunal did not say how the applicant acquired his Falun Gong knowledge (“learnt behaviour”), whether it was acquired as a result of his claimed Falun Gong practice in Australia or otherwise (for example, through a search of Falun Gong sites on the Internet).

6. But even if, on the respondent’s submissions, the distinction can be drawn in this case between the applicant’s “some knowledge of FG belief”, and the act of acquiring that knowledge, being his claimed practice of Falun Gong in Australia, the Tribunal still failed to decide whether or not the conduct that the applicant claimed to have engaged in Australia, which caused him to fear persecution if he returned to his country, had occurred, or had not occurred.

7. Plainly, on the principles set out by the Full Court, that is the threshold question that 91R(3) requires the Tribunal to address. The Tribunal did not address the claimed conduct. Even on the respondent’s submissions, at best, the Tribunal addressed the possession of the knowledge of the applicant, and the applicant’s motivation for acquiring that knowledge, but did not address the conduct engaged in acquiring that knowledge.

8. Even if such a distinction can be said to be drawn, I cannot see that it can assist the respondent in the circumstances of this case, where the Tribunal failed to decide whether or not the applicant’s claimed Falun Gong practice in Australia occurred. The Tribunal did not say that it had not occurred, such that there is nothing to disregard, and there is no occasion to determine whether or not s.91R(3)(b) may have application. The Tribunal’s analysis never reached that point because of its failure to properly deal with the applicant’s claimed conduct in Australia by deciding the basic question as to whether it occurred or not. This way, in part explains why the Tribunal made no reference to s.91R(3) in its analysis albeit that it used some of the wording from that subsection.

9. The Tribunal, therefore, did not have proper regard to the applicant’s conduct in Australia, and thereby contravened s.91R(3), and, in so doing, it made a jurisdictional error.

10. I cannot help but note that in reaching (or nor reaching) the requisite level of satisfaction that an applicant must be granted a protection visa (or not), within the relevant statutory regime (ss.65 and 36(2) of the Act), the Tribunal is required to make clear findings of fact to support its conclusion (whichever way that conclusion may lead). This, after all, is, at least, implicit in the Tribunal’s role as the relevant finder of fact in the exercise and discharge of its statutory duty to conduct the review.

The Discretion to Grant the Relief Sought

1. In submissions the respondent submits that if the Court finds that there is jurisdictional error, then relief should nonetheless be withheld, as it did not affect the outcome. This submission was put in circumstances that the Court finds jurisdictional error in relation to s.91R(3).

2. In this case, I have also found jurisdictional error for another reason. That is, that the Tribunal failed in the discharge of its duty to properly conduct a review of the delegate’s decision. As it was stated in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (at [45]): “This is a matter of substance”, and would alone justify the granting of relief that the applicant seeks.

3. But even in relation to s.91R(3), I do not accept the respondent’s submissions that the discretion should be exercised to withhold the relief that the applicant seeks. The respondent asserts that if the Tribunal had not assessed the applicant’s knowledge of Falun Gong, then without the knowledge acquired in Australia, the applicant’s case was even weaker. That is, that his knowledge was even more deficient than the Tribunal would expect of someone, given his claimed history and practice. The respondent relies on SZJHG v Minister for Immigration and Citizenship [2007] FMCA 2050 at [47] (“SZJHG”) in this regard.

4. The difficulty for the respondent is that in SZJGV (clearly decided after SZJHG and, noting with respect, that this was a judgement by a Federal Magistrate), the Full Court said that in relation to s.91R(3) (at [22]) if an applicant claims to have engaged in conduct in Australia (which is the situation in this case), which causes him to fear persecution and return to his country of origin (which is also the situation in this case), the “Tribunal must decide whether or not that conduct has occurred”. The Tribunal has not done so.

1. I do not see the Tribunal’s failure in this regard to be some “technical breach”. (For example, “the use of an incorrect postcode when serving notices”, as was the situation in SZKGF v Minister for Immigration and Citizenship (2008) FCAFC 84, one of the cases also relied on by the first respondent in making this submission).

Conclusion

1. In my view, based on the reasoning of the Full Court in SZJGV, the Tribunal’s error in relation to s.91R(3) was also of such character that the relief that the applicant seeks should not be withheld. For these reasons, therefore, I will make orders quashing the Tribunal decision, and returning the applicant’s matter to the Tribunal for proper consideration according to law.

Postscript

1. I note that written submissions provided by the applicant following the hearing of this matter, and specifically in relation to s.91R(3), assert actual bias on the part of the Tribunal. The applicant complains that the Tribunal’s conclusion that the applicant showed some knowledge of Falun Gong beliefs but only as “learnt behaviour” was influenced by bias on the part of the Tribunal.

2. For the benefit of the applicant (and whoever assisted the applicant in drafting his submissions), this is a very serious allegation to make against a Tribunal member, going as it does to the heart of the integrity of the member. Such an allegation, of course, asserts that the Tribunal did not bring an open mind to the proceedings. As is often said, such allegations should not be lightly made, and clearly need evidence in order to be made out. In my view, no such evidence has been brought to the Court by the applicant to support such a serious allegation. Plainly, such an allegation is not made out.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  28 August 2008