SZKHL v Minister for Immigration
[2008] FMCA 43
•25 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKHL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 43 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – Tribunal failed to properly understand applicant’s claims – Tribunal’s decision premised upon this misunderstanding – jurisdictional error – application allowed. |
| Migration Act 1958, ss.424, 424A, 430 |
| SZKHY v Minister for Immigration and Citizenship [2007] FMCA 1771 |
| Applicant: | SZKHL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 746 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 16 November 2007 |
| Date of Last Submission: | 16 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Mr J Pinder |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue, quashing the decision of the second respondent.
A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 746 of 2007
| SZKHL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) filed on 5 March 2007, and amended on 26 June 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 26 January 2007, and handed down on 15 February 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The Minister has filed a bundle of relevant documents in this matter (Court Book (“CB”)) from which the following may be discerned.
The applicant is a citizen of the People’s Republic of China (“China”) who arrived in Australia on 29 September 2006 and applied for a protection visa on 6 October 2006 (reproduced at CB 1 to CB 36, with annexures). On 10 November 2006, a delegate of the respondent Minister refused to grant a protection visa. On 12 December 2006, the applicant applied to the Tribunal for review of that decision. On 18 December 2006 the Tribunal sent two separate letters to the applicant: one pursuant to s.424A of the Act (CB 57) (“the s.424A letter”) and the second pursuant to s.424 (CB 58) (“the s.424 letter”). By letter dated 21 December 2006, the Tribunal invited the applicant to a hearing scheduled for 18 January 2007 (CB 59). The applicant responded that she did not wish to attend (CB 63). On 26 January 2007, the Tribunal signed its decision to affirm the delegate’s decision.
The applicant’s claims to protection
The applicant’s claims to protection are set out in her statutory declaration attached to her application for a protection visa. The applicant claimed she was a doctor (employed by a hospital) in China who saw it as her humanitarian duty to treat Falun Gong practitioners, even though this practice was forbidden to her by the authorities. She wrote to the authorities expressing her beliefs regarding human rights and freedoms. Ultimately, she was detained by the authorities and dismissed from her employment. Her husband also was “punished by his employer”. She fled China to avoid persecution.
The Tribunal
The Tribunal found that on what was before it, and given that she did not attend the hearing, it was not able to be satisfied, given the lack of detail, as to the “truthfulness” of her claims. The Tribunal therefore could not be satisfied that the applicant faced a real chance of persecution should she return to China, and therefore found she was not a person to whom Australia owed protection obligations.
Application to the Court
The amended application filed on 26 June 2007 puts forward, in the form of submissions, eight numbered grounds with particulars:
“1.The Tribunal acted in breach of section 424A of the Migration Act1958 and in breach of the rules of procedural fairness and/or natural justice by failing to put to the Applicant for comment the actual independent country information on which it relied in making its determination and which was potentially adverse to the Applicant. As a consequence the decision is affected by jurisdictional error and must be set aside.
By way of particulars it is submitted that in its section 424A letter to the Applicant of 18 December 2006 (at page 57 of the Court Book) the Tribunal referred to specific ‘country information’ said to indicate that ‘if Falun Gong practitioners sought asylum they would obtain proof through local Falun Gong centres and societies.’ The Tribunal stated that the information was relevant to the decision because ‘without such proof it is difficult to accept that you are a Falun Gong practitioner, and your credibility would be in issue.’
It is submitted that the Tribunal erred in not identifying the actual county (sic) information to which it referred in the section 424A letter, in not properly sourcing that information, in not providing a copy of that information to the Applicant, and in not giving the Applicant a proper opportunity to comment on that actual ‘country information’ as distinct form (sic) the Tribunal’s brief statement of what the country information was said to indicate.
In support of this submission the Applicant relies generally on the decision of SZGAF v MIMIA (2004) 82 ALD 364 and on the decision of Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Miah (2001) 206 CLR 57 to the effect that the presence of a provision such as s 424A does not preclude the continued existence of the common law requirements of natural justice.
2.Moreover, it is submitted that the country information referred to by the Tribunal is entirely irrelevant to the Applicant’s circumstances because she had never claimed to be a Falun Gong practitioner. The clear inference from the section 424A letter is that the Tribunal misunderstood and mis-stated the specific nature of the Applicant’s claims as set out in her Statutory Declaration of 5 October 2006 and as quoted in the ?Tribunal’s decision (see pages 74-75 of the Court Book).
3.For the same reasons the Tribunal’s request to the Applicant pursuant to section 424 of the Act to provide additional information (at page 58 of the Court Book) by way of ‘letter or letters from the local Falun Gong centre, society, or group with which yo (sic) practise …’ was entirely irrelevant to the Applicant’s circumstances and claims for refugee status. The Applicant has never claimed to be a Falun Gong practitioner in either China or Australia. Her central claim is that as a doctor she assisted Falun Gong practitioners and that as a consequence she came to the adverse attention of the authorities and faces the risk of persecution on that basis if she returns to China. By its section 424 letter the Tribunal misunderstood and mis-stated that claim, and confused the Applicant.
4.It is submitted that these letters are inadequate for the purposes of section 424 or section 424A of the Act, and led to the Applicant’s confusion and inability to respond to the matters raised by the Tribunal. It is apparent that in determining the Applicant is not a refugee the Tribunal placed significant weight on the Applicant’s failure to provide additional information in response to the section 424 letter and on her failure to respond to the section 424A letter (see pages 76-77 of the Court Book). In the particular circumstance the Tribunal thereby fell into legal error.
5.Moreover it is apparent from the fact and substance of the section 424A letter that in making its decision the Tribunal implicitly took into account and relied on the country information referred to in that letter. In making its decision the Tribunal again failed to explicitly refer to or identify that actual county (sic) information, failed to source that country information, and failed to give the Applicant a proper opportunity to comment on that country information.
6.Further, by its section 424 and 424A letters the Tribunal gave the Applicant until 12 January 2007 to provide her response to those letters. Parallel with those invitations, and therefore the expiry of the time for her response, the Tribunal wrote to the Applicant on 21 December 2006 to advise that a hearing in the matter would be held on 18 January 2007. The first paragraph of that letter states that the ‘Tribunal has considered the material before it … but is unable to make a decision in your favour on this information alone.’ It is submitted that this parallel letter led to a further confusion for the Applicant and an impression that the additional material sough in the section 424 and 424A letters would not be considered. The parallel and contradictory correspondence suggests the Tribunal already had before it the documentary material on which it would base its decision, irrespective of any further material provided by the Applicant. The Tribunal’s decision is thereby affected by jurisdictional error.
7.As outlined in her Affidavit to the Court in support of her original Application the Applicant claims that she advised the Tribunal by letter that she was unable to attend the hearing on the date set down because of unless. It is accepted that the Applicant, who was unrepresented at the tine, does not have a copy of that letter. While the Applicant does not deny that she signed the Response to Hearing Form at page 63 of the Court Book, she submits that she did not understand the effect of that letter and claims that she wanted to attend a hearing before the Tribunal.
8.As a consequence of these procedural and substantive errors the decision of the Tribunal is affected by jurisdictional error.”
Hearing before the Court
At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. Mr Pinder appeared on behalf of the first respondent. I also have before me written submissions filed on behalf of the first respondent on 8 November 2007.
At the hearing, the applicant submitted:
1)She was sick at the time of the scheduled hearing before the Tribunal and was not able to attend for that reason. That she had sent “mail” to the Tribunal in that regard prior to sending the “Response to Hearing Information” form (CB 63) which had been completed with the assistance of a “student” because she did not speak (or read or write) English. But she had no evidence to “prove” it. [These were assertions from the Bar table.]
2)The Tribunal had misunderstood her claims. The applicant’s submissions in this regard were, in effect, to quote from what are described as the grounds of the amended application.
I should just note that the amended application was drafted (see signature at page 3) by a practitioner on the panel of the Court’s legal advice scheme, whose “applications” and “amended applications” have been seen before in this Court (see for example SZKHY v Minister for Immigration and Citizenship [2007] FMCA 1771).
The drafter of the amended application has some difficulty in understanding the difference between pleading ground, and making submissions and arguments in support of those grounds. Further, in support of “arguments” in the amended application relating to s.424A (paragraph 1), the “submissions” misstate relevant law as it applies to the issue that is specifically advanced. That is, that the Tribunal breached its procedural fairness requirements in that it failed to put actual independent country information on which it relied to the applicant for her comment. No reference is made to s.422B of the Act. Nor is there reference to relevant, and settled, authorities as to the scope of s.424A(3)(a) of the Act.
Further, given that the Tribunal’s decision did not turn on any independent country information before it, but rather on its being unable to achieve the requisite level of satisfaction that the applicant was a person to whom Australia owed protection obligations (ss.65 and 36(2) of the Act), this argument appears to be misconceived. As well as relying on authorities to support the proposition that the “presence of a provision such as s.424A does not preclude the continued existence of the common-law requirements of natural justice” appears to ignore a substantial body of law (including High Court authority) since that time.
Observations
In any event whatever the deficiencies in the amended application, the circumstances before the Court now do reveal jurisdictional error on the part of Tribunal.
It is trite to say that the Tribunal is required to properly identify and understand an applicant’s claims, and to deal with each of those claims, and each integer of those claims. In this case the Tribunal misunderstood the applicant’s claims. I am not satisfied, in all the circumstances, that the Tribunal properly dealt with the applicant’s claims as put by her.
The Tribunal received the applicant’s application for review on 12 December 2006. It then arranged to obtain a copy of her application for a protection visa (with a copy of an attached statement) (CB 55). That it had received the protection visa application is evident from the reference that the Tribunal made in its letter of 18 December 2006 inviting the applicant to comment on certain information (CB 57). When this letter (and indeed, the other letter sent on 18 December 2006 pursuant to s.424 of the Act) (CB 58) is read (even individually) it is clear that the Tribunal, at that point, had misunderstood what the applicant had plainly put in her statement attached to the protection visa application. It had formed the view that the applicant claimed to have been a Falun Gong practitioner in China.
The s.424A letter (CB 57) referred the applicant to answers to questions in her protection visa application that she had left China legally and did not have difficulties in obtaining a travel document. It invited comment that country information before it indicated: “that if Falun Gong practitioners sought asylum they would obtain proof through local Falun Gong centres and societies” (CB 57.5). The s.424 letter (CB 58) invited the applicant to: “provide a letter or letters from the local Falun Gong centre, society or group with which you practise ... the letter should state whether you are a genuine Falun Gong practitioner and your level of commitment, and details as to how often you practise with the group, and the group’s location” (CB 58.5).
Three days later, the Tribunal wrote to the applicant and invited her to a hearing (CB 59 to CB 60). In this letter, the Tribunal said it: “has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone” (CB 59.4).
In its decision record (CB 71 to CB 78), the Tribunal:
1)noted that the applicant did not appear before it (CB 74.3);
2)referred to the application for a protection visa (CB 74.4);
3)set out in full the applicant’s attached statement (CB 74.5);
4)set out in full the terms of its “section 424 letter” (CB 75.9);
5)noted that: “no response was received” (CB 76.4);
6)set out in full the terms of its “section 424A letter” ( 76.4); and
7)noted that: “no response was received” (CB 76.8).
In its “Findings and Reasons”, the Tribunal noted that it had written to the applicant advising her that it had considered all the material before it but was unable to make a favourable decision on that information alone, that it had invited her to a hearing, and that the applicant had advised the Tribunal that she did not wish to attend the hearing. The Tribunal then noted: “this matter has therefore been determined on the evidence available to the Tribunal” (CB 77.3). The Tribunal then states (at CB 77.5):
“As the applicant did not attend an oral hearing, her claims could not be tested by the Tribunal. The Tribunal only has the information contained in the written material before it from which to make a determination.”
The Tribunal’s reason for its decision is plain. It could not reach the requisite level of satisfaction on what it said was before it that the applicant was a person to whom Australia owed protection obligations.
The issue, however, is whether the Tribunal properly understood what actually was contained in the written material before it, and about which, and in respect of which, it said it could not form the requisite level of satisfaction such that the applicant must be granted a protection visa.
Both by way of written and oral submission, the Minister raised a number of issues in asserting that the Tribunal had properly understood and properly dealt with the applicant’s claims.
The Minister conceded that the “section 424 and 424A letters may misstate the nature of the Applicant’s claims” (see paragraph 32.1 of written submissions). But that it cannot subsequently be inferred that the Tribunal misunderstood the nature of the applicant’s claims in the actual making of its decision. That at the early preliminary stage (that is, at the time of the sending of the two letters) that it was conceivable that a perceived Falun Gong sympathiser who was forced to flee China would seek asylum or assistance from local Falun Gong centres.
I do not accept this argument to the extent that in the latter part it appears to argue against the Tribunal misstating the applicant’s claims in these letters. The s.424 letter in particular asks the applicant to provide details of the “local Falun Gong centre” “with which you practise” (CB 58.5). The letter made no mention of the applicant being a Falun Gong sympathiser, but plainly sought information on the basis that the applicant was something different, that is, a Falun Gong practitioner. Further, the s.424A letter plainly again made reference to “Falun Gong practitioners” (CB 57.4). In my view, very plainly, both letters proceeded on a mistaken view of the applicant’s claims.
The Minister’s submissions also assert that even if (although not conceded) the Tribunal did misunderstand the applicant’s claims, it was only at a preliminary stage (that is, at the time of the sending of the letters), and that by the time it came to make its decision, the Tribunal properly understood the nature of the applicant’s claims.
There is some support for this aspect of the Minister’s submissions. In setting out why it believed that her assertions lacked detail, the Tribunal referred to a large number of matters that appear to relate directly to the applicant’s statement attached to the protection visa application (CB 77.7.).
However, had this been all, then I would have been persuaded to the Minister’s view. However, what should be noted, at first, is that the Tribunal, in putting forward these matters or items (at CB 77.7), appears to have put these items forward as examples of the lack of detail, and not the comprehensive list of the applicant’s claims. The words “for instance” (appearing at CB 77.7) would support this view of what it has done.
But even if this also was all that the Tribunal had done, I again, on balance, may have been persuaded to the Minister’s view. But this Tribunal has done more.
The Tribunal had misunderstood the applicant’s claims as at the time of the sending of s.424 and s.424A letters. I do not agree with the submission that this misunderstanding was confined to a preliminary stage of the review and did not intrude into the Tribunal’s final consideration of the application. The Tribunal’s verbatim reproduction in its decision record of the entire text of the two letters does, in my view, provide strong evidence, in all the circumstances, that the Tribunal had not abandoned this mistaken preliminary view of the applicant’s claims. It sought to maintain, that view of the applicant’s claims, when it reproduced the letters in full in the body of its decision record.
Section 430 of the Act obliges the Tribunal to prepare a written statement when it makes its decision on a review and, amongst other things, requires the Tribunal to prepare a written statement that: “refers to the evidence or any other material on which the findings of fact were based” (s.431(d) the Act).
By setting out the letters in full (letters which, in my view, plainly contained a misunderstanding and misstatement of the applicant’s claims), the Tribunal was complying with the statutory necessity to refer to the evidence, or other material, on which its findings were based.
In submissions, Mr Pinder suggested that the inclusion of the letters could have been for the purpose of the Tribunal demonstrating that it had provided opportunities to the applicant to put forward her case and that she had not done so (see heading: “Invitation to Provide Information”). I may have been inclined to accept Mr Pinder’s suggestion had it not been for the Tribunal setting out the letters in full in its decision record. If the Tribunal was merely seeking to demonstrate that it had provided the applicant with opportunities which she did not take up, then all that would have been required to achieve that purpose would be a simple statement to that effect.
The inclusion of the full text of these letters in the decision record must at least be taken to be in compliance with the statutory requirement to refer to “evidence or any other material on which the findings of fact were based”.
But what ultimately persuades me to the view that the Tribunal not only misunderstood the applicant’s claims at a preliminary stage, but also maintained that misunderstanding through to the time that it came to give final consideration to the applicant’s claims, in addition to the matters already stated, was that the Tribunal, having set out the letters in full (which, as I have already stated plainly revealed a misunderstanding of the applicant’s claims), was absolutely silent on any such preliminary misunderstanding of her claims in its decision record. Having set out the letters in full, the Tribunal makes no reference whatsoever to any preliminary mistaken view of what the applicant’s claims were.
There was no obligation on the Tribunal to reproduce these letters in full in its decision record, beyond the obligation that it had to set out material on which the findings of fact were based. Having set out these letters in full, with no subsequent explanation or reference to the misstatements that these letters contain, the Tribunal then went on to say that as the applicant did not attend an oral hearing: “claims could not be tested”. The Tribunal’s subsequent very plain words in its reasons were that it could: “not be satisfied on the evidence before it that the applicant faces a real chance of persecution” (CB 77.8). Further: “the Tribunal is unable to be satisfied on the evidence before it that the applicant has a well-founded fear of persecution for a Convention reason” (CB 77.9). In these circumstances, what was before it plainly included the contents of its own s.424A and s.424 letters which included the misunderstanding of the applicant’s claims.
This is not a case where, as suggested by “submissions” in the amended application, the Tribunal failed in its obligations pursuant to ss.424A and 424. The relevance of those letters is that they are firstly the vehicle by which the Tribunal demonstrated initially its misunderstanding (and it must be said a fundamental misunderstanding of the applicant’s claims). But the unexplained (in the decision record) importation in full of the text of those letters into its decision record (an action in itself which is plainly not jurisdictional error) reveals in the circumstances explained above that the Tribunal could not reach a requisite level of satisfaction, not only in regard to the claims made by the applicant in her own statement, but also could not reach a requisite level of satisfaction in regard to claims, which the applicant never made, but which the Tribunal plainly misunderstood (not only at a preliminary stage, but at the time of the making of its decision and which it imported into that decision by referring to this material in the way that it did in its decision record).
As to whether the applicant was confused by the letters or whether the applicant did not understand the nature of the: “Response to Hearing Invitation” form, or had sought to advise the Tribunal of her illness and inability to attend at some time prior to sending the “Response to Hearing Invitation” form to the Tribunal, are issues which do not detract from, or effect, the Tribunal’s failure to initially understand the exact nature of the applicant’s claims, and its continued failure to so understand those claims when it ultimately came to consider the making of its decision.
The Minister’s written submissions also appear to rely (paragraphs 49 to 51) on the proposition that the Tribunal’s decision arose out of its not being able to be satisfied as to the truth of her unsubstantiated assertions about her persecution. The submissions appeared to argue that the Tribunal decision did not turn on whether the applicant was a Falun Gong practitioner or whether she merely provided assistance to Falun Gong practitioners, but simply on a lack of satisfaction.
I do not agree that such a distinction can assist the Minister before this Court. While it is clear that the Tribunal could not be satisfied of the truth of the applicant’s claims, the clear issue is what exactly the Tribunal understood those claims to be and in respect of which it said it could not reach the requisite level of satisfaction.
Conclusion
In my view, the Tribunal persisted in its misunderstanding of the applicant’s claims, made a finding which was based on this misunderstanding, and failed to properly deal with and consider the applicant’s claims. For this reason the Tribunal’s decision is affected by jurisdictional error. I can see no other reason to deny the applicant the relief that she seeks. I will make orders accordingly quashing the Tribunal’s decision and returning the applicant’s matter to the Tribunal for reconsideration.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 25 January 2008
0