SZLSP v Minister for Immigration
[2009] FMCA 932
•24 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 932 |
| MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizens of China claiming fear of persecution as Falun Gong practitioners – credibility – whether the Tribunal asked itself the wrong question – whether merits review – certiorari and mandamus to issue. |
| Migration Act 1958 (Cth), ss.36, 91R, 420, 424A, 476 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SZLSP & Anor v Minister for Immigration & Anor [2008] FMCA 950 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; 195 ALR 24; 77 ALJR 454; [2003] HCA 2 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 205 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30 SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 followed Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599 WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FAFC 2 SBCC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 270 followed Collector of Customs, Tasmania v Flinders Island Community Association (1985) 7 FCR 205 |
| First Applicant: | SZLSP |
| Second Applicant: | SZLSQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 575 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 June 2009 |
| Date of Last Submission: | 15 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gormly |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
An order in the nature of certiorari is to issue quashing the decision of the Second Respondent dated 13 February 2009 affirming a decision not to grant the Applicants a Protection (Class XA) visa.
An order in the nature of mandamus is to issue remitting the Applicants’ application to the Second Respondent for determination according to law.
The First Respondent is to pay the Applicants’ costs fixed in the sum of $7,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 575 of 2009
| SZLSP |
First Applicant
| SZLSQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicants are citizens of the People’s Republic of China who are seeking review of a decision of a decision of the Refugee Review Tribunal. The decision is dated 13th February 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant them Protection (Class XA) visas.
By their amended application, filed on 27th April 2009, the Applicants seek the following orders:
a)A writ of certiorari;
b)An order that the Tribunal’s decision be quashed;
c)A writ of mandamus, directed to the Tribunal, ordering that the Applicants’ application for review of a decision of a delegate of the Respondent to refuse to grant protection visas to the Applicants be heard and determined according to law by the Tribunal differently constituted;
d)Costs.
The Minister has filed a Response opposing the orders sought.
Background
The Applicants, who are husband and wife, arrived in Australia on 7th April 2007. On 13th April 2007 they applied for Protection (Class XA) visas. They each filed a Part C application, indicating that they each wished to submit their own claims to be refugees.
In a statement[1] accompanying his application, the First Applicant claimed that he had been introduced to Falun Gong by a friend and commenced practising before 1999. He claimed that in June 2003 he and three others were arrested and interrogated. He said that he was detained for three days, during which time he was beaten and made to sign a “letter of guarantee”.
[1] Court Book 41-44
The First Applicant claimed that he was again arrested and detained in September 2005. The Police went to his home and one of them struck his wife, causing her to fall and break her nose. He claimed that he and his wife both lost their jobs because they practised Falun Gong. They left China for Australia.
The Second Applicant also provided a written statement[2] in support of her application. In that statement she said that her husband had been arrested in 2003 as a result of his Falun Gong practice and was later obliged to practise in secret. She stated that her husband was again arrested in September 2005. The Police came to her home and struck her, as a result of which she hit her head on a table, injuring her nose. She went to hospital and was treated for a broken nose. After she and her husband left China the police went to her sister’s house and said “threatening words” to her.[3]
[2] Court Book 49-50
[3] Court Book 50.
A delegate of the Minister wrote to the Applicants on 9th July 2007, advising them that their applications for protection visas had been refused.[4] The delegate was not satisfied that the First Applicant was targeted by the Chinese authorities because of his Falun Gong beliefs and found that there were a number of factors which cast serious doubts on the credibility of the First Applicant’s claims and the genuineness of his claimed fear of Convention related persecution:
· The applicant’s claims are uncorroborated and much of the information he has provided is broad, vague and lacking in relevant detail…
· His claim that he was detained by the Chinese authorities because of his religious beliefs lacks credibility…
· Also, there are inconsistencies in the applicant’s evidence…
· Also, I note that his passport was issued to him on 6 December 2006, after his release from the alleged detentions, yet he did not make any attempt to depart from his country earlier…
· Furthermore, there is no objective evidence to indicate that the applicant holds a profile that would attract adverse attention from the authorities if he were to return to the PRC. Rather, the evidence is to the contrary.[5]
[4] Court Book 63
[5] Court Book 69-70
The delegate stated that the Second Applicant, the wife, “bases her claims on her husband’s claims”[6] and dealt with her claim in this way:
The main applicant has not been granted a Protection (Class XA) visa. I am satisfied that the following applicant listed at Part A, as covered by this decision, does not satisfy section 36 of the Migration Act and criteria 866.221 or 785.221 of the Migration Regulations and therefore has not met the prescribed criteria for the grant of a Protection (Class XA) visa.[7]
[6] Court Book 69
[7] Court Book 72
The Applicants sought review of the delegate’s decision from the Refugee Review Tribunal.
Application to the Refugee Review Tribunal
The Tribunal received the Applicants’ application on 30th July 2007.[8] The Tribunal invited them to attend a hearing on 11th September 2007[9], which was later rescheduled to 5th October 2007.[10]
[8] Court Book 73-76
[9] Court Book 80-81
[10] Court Book 88
The First Applicant submitted a four-page statement to the Tribunal dated 20th August 2007.[11]
[11] Court Book 84-87
The Applicants attended the hearing on 5th October and gave evidence.
On 10th October the Tribunal wrote to the Applicants under the provisions of s.424A of the Migration Act.[12] The First Applicant provided a statutory declaration in reply to that letter on 31st October.[13]
[12] Court Book 108-111
[13] Court Book 121-127
The Tribunal handed down its decision on 27th November 2007[14], affirming the delegate’s decision not to grant the Applicants Protection (Class XA) visas.[15]
[14] Court Book 128
[15] Court Book 132
The Applicants sought judicial review of the Tribunal decision. Their application was dismissed on 17th July 2008 (SZLSP & Anor v Minister for Immigration & Anor[16]). On appeal, orders were made by consent issuing writs of certiorari and mandamus.[17]
[16] [2008] FMCA 950
[17] Court Book 153-154
The Tribunal invited the First Applicant to a hearing to take place on 13th January 2009.[18] His migration agent submitted two photographs to the Tribunal, showing the First Applicant at Falun Gong demonstrations in Hyde Park and in Belmore Park in Sydney.[19]
[18] Court Book 163
[19] Court Book 166-167
The Tribunal wrote to the First Applicant by fax transmission on 12th January 2009, the day before the hearing. The letter was couched in terms of an invitation to comment under s.424A of the Migration Act and sought his comments or response to information that the Tribunal considered would, subject to any comments he made, be the reason or part of the reason for affirming the decision under review. The letter said:
The particulars of the information are:
· The Tribunal previously constituted put to you at hearing a number of inconsistencies between oral evidence given by you and your wife and statements made by you and your wife in your primary application to the Department. These are set out in an extract from the decision record of the Tribunal previously constituted which is also attached.
This information is relevant to the review because it may lead the Tribunal presently constituted to conclude that it cannot rely on your evidence because of the inconsistencies within it together with the additional inconsistency referred to in the Tribunal’s letter to you of 10 October 2007, a copy of part of which is also attached.
You are invited to give comments on or respond to the above information at an interview with the Tribunal Member considering the case. The interview will take place at the beginning of the hearing.[20]
[20] Court Book 169
The Tribunal wrote a similar letter to the Second Applicant on 13th January, the day of the hearing, advising that due to “an administrative error” the letter had not previously been sent to her.[21]
[21] Court Book 175
The Tribunal also wrote to the Applicants’ migration agent that same day, 13th January 2009, advising that, again due to an administrative error, the previous invitation to a hearing had not been extended to the Second Applicant. The letter invited both Applicants to a hearing on 30th January 2009.[22]
[22] Court Book 181
Both Applicants appeared before the Tribunal on 13th January 2009, accompanied by their migration agent.[23] The First Applicant gave evidence in his own right at the hearing. The wife gave evidence as a witness. The Tribunal held a second hearing on 30th January 2009 at which the wife gave evidence on her own behalf.
[23] Court Book 183
The Tribunal explained this rather unusual procedure in this way:
The first named applicant also appeared before the Tribunal on 13 January 2009 and the second named applicant on 30 January 2009 to give evidence and present arguments. The second named applicant was a witness for her husband at the 13 January hearing and he was a witness for her at the 30 January hearing. (Two hearings were held as a result of an administrative oversight in the Tribunal. The invitation to the first applicant did not specify that the invitation to the first named applicant’s wife, although she had completed Part C of the application form and therefore had claims of her own to be a refugee. This was rectified by issuing a second invitation, this time to her).[24]
[24] Court Book 206 at paragraph [20]
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 13th February 2009, affirming the decision not to grant the Applicants a Protection (Class XA) visa.[25]
[25] Court Book 203
In its Decision Record, the Tribunal set out summaries of the Applicants’ evidence to the previously-constituted Tribunal as well as to the present Tribunal. It referred to the earlier s.424A letters and to the letters to the Applicants of 12th and 13th January 2009. The Tribunal noted that the Applicants responded to those letters at interviews held prior to the hearings themselves on 13th and 30th January.
The Tribunal noted:
At hearing, I asked the first named applicant a series of questions about Falun Gong. He answered none of them correctly.[26]
[26] Court Book 218 at [28]
In its Findings and Reasons, the Tribunal accepted that the Applicants are citizens of China but did not accept their claims, expressing the view that their stories had been “concocted”.
The Tribunal referred briefly to conflicting testimony by the Second Applicant about various aspects of her claims. The Tribunal went on to find:
However, the principal reason why I do not accept the claims of the applicants is that I do not believe that the first named applicant is a Falun Gong practitioner. His inability to answer correctly my questions about basic elements of Falun Gong belief causes me to discount any possibility that he has practiced Falun Gong in China as he claims. Accordingly, I find that his claimed practice in Australia is not for reason of genuine adherence to Falun Gong, but, rather, for the purpose of strengthening his claim to be a refugee. In accordance with s 91R(3), therefore, I will disregard this practice. Because of my finding that he knows little – almost nothing – about Falun Gong, I do not believe that he would seek to practice Falun Gong should he return to China.[27]
[27] Court Book 218 at [33]
The Tribunal then turned its attention to the claims of the Second Applicant, saying:
As to the second named applicant, her claims collapse because they are predicated on her husband being a Falun Gong practitioner, which I have found he is not. However, the confusion in her own evidence on two critical matters – exactly what happened to her on the day her husband was arrested and whether or not she has subsequently to report to the police – undermine her credibility and lead me to conclude that she is not a witness of truth and to reject her claims for that reason also.[28]
[28] Court Book 219 at [35]
The Tribunal found that neither Applicant had a well-founded fear of persecution in China for a Convention reason and affirmed the decision not to grant them Protection (Class XA) visas.
Application for Judicial Review
The Applicants applied to this Court on 10th March 2009. They filed an amended application on 27th April 2009.
Mr Gormly of counsel, who appeared for the Applicants, told the Court that only the first ground in the amended application would be argued. That ground claims that the Tribunal fell into error by asking itself the wrong question concerning the First Applicant’s claim to be a Falun Gong practitioner.
The particulars of that ground are given as:
a.In considering the first applicant’s claim to be a Falun Gong practitioner the Tribunal arbitrarily imposed and applied a standard comprising the possession of certain knowledge of Falun Gong theory which it required the applicant to meet.
b. As a result of the application of this standard the Tribunal failed to take into account the knowledge of Falun Gong theory proffered by the first applicant at the hearing.
c.As a result the Tribunal found the first applicant knew almost nothing about Falun gong and therefore did not believe he was a Falun Gong practitioner.
d.The Tribunal found that the principal reason why it did not accept the claims of both applicants was that it did not believe the first applicant was a Falun gong practitioner.
The Applicants’ Submissions
Counsel for the Applicants submitted that the Tribunal constructively failed to exercise its jurisdiction by asking the wrong question. This involves jurisdictional error (Plaintiff S157/2002 v The Commonwealth[29] at [76]).
[29] (2003) 211 CLR 476; 195 ALR 24; 77 ALJR 454; [2003] HCA 2
It was submitted that the Tribunal had asked the First Applicant a series of questions about Falun Gong theory, with a particular text being the Tribunal’s source of information. However, the Tribunal did not disclose the name of this text.
Mr Gormly submitted that the Tribunal constructively failed to exercise its jurisdiction in the sense discussed by Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf[30] at 339-340 [41]-[44] by applying a standard comprising the possession of specific knowledge of Falun Gong theory which it required the First Applicant to meet.
[30] (2001) 205 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30
While an exploration of a person’s state of knowledge of their religion provides a rational basis for determining whether their profession of that religion is genuine (SBCC v Minister for Immigration and Multicultural Affairs[31] at [45]), it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion (Wang v Minister for Immigration and Multicultural Affairs[32] at 551-552; WALT v Minister for Immigration and Multicultural and Indigenous Affairs[33] at [28]). It is wrong for a Tribunal to approach the issue on the basis that the applicant has to satisfy it that the applicant possesses a specific level of doctrinal knowledge (Wang at 552 [16]; WALT at [30]).
[31] [2006] FCAFC 129
[32] (2000) 105 FCR 548; [2000] FCA 1599
[33] [2007] FCAFC 2
Mr Gormly submitted that these principles may be applied to Falun Gong (see SBCC at [45]).
It was further submitted that in this case the findings of fact (that the First Applicant answered none of the questions about Falun Gong correctly[34] and knew almost nothing about Falun Gong (“little – almost nothing”[35]) could not be said to be clear and open on the evidence, not least because the evidence of the correctness of the answers was never made known.
[34] Court Book 218 at [28]
[35] Ibid at [33]
The Minister’s Submissions
Mr Smith of counsel appeared for the First Respondent, the Minister for Immigration and Citizenship. He submitted that the Applicants’ ground of review is an attack on the merits of the Tribunal decision and it was not asserted that the Tribunal’s findings were not open to it on the evidence. The Tribunal is entitled to take into account whatever material it has and give it whatever weight it sees fit. He referred to the decision in Wang v Minister for Immigration and Multicultural Affairs[36] where Gray J said at 552 [14]:
It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.
[36] supra
Mr Smith submitted that this comment was obiter and that his Honour did not say that this goes to jurisdiction, only that it was not appropriate.
Further, in SBCC, which was a Falun Gong case, the Tribunal had explored with the applicant his knowledge of Falun Gong and had challenged the applicant about the depth of his knowledge. Further, it had been held that an inquiry is necessary where a person claims adherence to a religion which will attract persecution on his or her return. The Tribunal can also legitimately explore what that person knows about his or her religion.
Again, in WALT, it was held that it was not appropriate for the Tribunal to take on the role of arbiter of doctrine and for it to set a minimum standard of understanding of the tenets of that religion is erroneous. However, it does not follow that questioning an applicant about his or beliefs means that the Tribunal is becoming an arbiter of the doctrine of that religion. In that case the Tribunal merely explored the applicant’s knowledge.
It was submitted that in the case under review all that the Tribunal did was to make a finding that the First Applicant did not know anything about Falun Gong. It was making an assessment of fact on the evidence before it.
Conclusions
The authorities referred to previously set out a guide for a Court at first instance to follow on this issue.
In Wang, Gray J stated:
Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.[37]
[37] (2000) 105 FCR 548; [2000] FCA 1599 at [16]
In SBCC, the appellant, who claimed to have engaged in Falun Gong activity, was found by the Refugee Review Tribunal to have fabricated his early involvement with Falun Gong. That finding, together with his limited knowledge, had led the Tribunal not to be satisfied that his recent undertaking of Falun Gong activities was other than for the purpose of strengthening his claim to be a refugee (see Migration Act, s.91R(3)). The appellant argued that the Tribunal had applied its own knowledge of Falun Gong as setting the standard for determining that he did not have adequate knowledge of his claimed religion. The appellant cited the judgment of Gray J in Wang[38] and submitted that there was no evidence before the Tribunal that every member of Falun Gong must know in detail the matters upon which the Tribunal questioned the appellant.
[38] supra
The Full Court (French, Lander and Besanko JJ) dealt with that ground of appeal in this way:
It is sufficient to say that the Tribunal’s findings of fact were clear and open on the evidence and were fatal to the appellant’s claims. The Tribunal found that the appellant had fabricated his claim to be a Falun Gong practitioner since 2002. It accepted that he had done Falun Gong exercises while in detention but because of his fabrication of earlier involvement and what it regarded as his superficial knowledge, the Tribunal was not satisfied that he had engaged in the more recent activities other than for the purpose of strengthening his refugee claim…
Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground. Here, there was ample ground for the Tribunal to find that the appellant’s case was fabricated and, a fortiori, that it could not be satisfied as required by s.91R(3) that his engagement in Falun Gong activities was otherwise than for the purpose of strengthening his claim to be a refugee.[39]
[39] [2006] FCAFC 129 at [43] and [45]
The appellant’s second ground of appeal in SBCC was said to go to the
‘…apparent imposition by the Tribunal of a standard that it imposed as to the requisite level of knowledge of Falun Gong doctrine that might attract Falun Gong status’. There was, it was said, no evidence before the Tribunal to indicate any ‘cut off’ point for an acceptable minimum level of knowledge for a Falun Gong practitioner.
The short answer to this contention is that where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim. That is what happened in this case.
Any criticism of the process of the Tribunal’s reasoning to a finding on credit does not expose jurisdictional error. It is also to be borne in mind that the Tribunal’s assessment of credit in this case was based upon more than just the appellant’s level of knowledge of his professed religion.
The second ground of appeal as formulated is also based upon the assumption that the Tribunal held that ‘every believer or follower of the Falun Gong religion must have certain knowledge or provide certain answers concerning aspects of that religion’. This was not a proposition enunciated or implied in the Tribunal’s reasons.[40]
[40] [2006] FCAFC 129 at [46]-[49]
More recently, the Full Court (Mansfield, Jacobson and Siopis JJ) considered the decision in Wang in WALT[41], which was a case of a young man from Kenya who was claiming to be a person to whom Australia owed protection obligations for reasons of his religion and his membership of a particular social group. He claimed to have been brought up in strict Muslim family but to have converted to Christianity at the age of 11 and thereby disowned by his family.
[41] supra
The Full Court stated that the Tribunal “simply did not believe the appellant’s claims”[42] and “noted that the appellant did not even have a rudimentary knowledge of Christianity”.[43] At first instance, the appellant had argued that:
…the Tribunal had wrongly filtered his claim through its own views of what were appropriate understandings and beliefs for a Christian to have. Reliance was placed upon the observations of Gray J in Wang v Minister for immigration and Multicultural Affairs [2000] FCA 1599; (2000) 105 FCR 548 at 557, [16] (Wang).[44]
[42] [2007] FCAFC 2 at [7]
[43] [2007] FCAFC 2 at [8]
[44] [2007] FCAFC 2 at [16]
This ground was re-argued on appeal. The Full Court dealt with that ground in this way:
In Wang at 552, [16], Gray j pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.
But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.
We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment. Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his ‘conversion’, or at the time of the Tribunal’s hearing.[45]
[45] [2007] FCAFC 2 at [28]-[30]
In my view, with respect, the decisions in SBCC and WALT require an examination of the Tribunal decision to see whether the Tribunal did, in fact, set up a minimum standard of knowledge of the religion or belief and thereby take on the role of ‘arbiter of doctrine’ (Wang at 552, [16]), or whether it was doing nothing more than questioning the applicant about his or her beliefs on matters which that particular religion teaches (WALT at [29]) or legitimately exploring what that person knows about the religion ‘in order to assess the genuineness of the claim’ (SBCC at [47]).
In the decision under review, the Tribunal dismissed the claims of the first applicant to be a Falun Gong practitioner because he was unable to answer any questions about Falun Gong correctly.[46] He was unable to answer correctly the Tribunal’s questions about “basic elements of Falun Gong belief”.[47]
[46] Court Book 218 at [28]
[47] Ibid at [33]
There were other reasons given, relating to inconsistencies and discrepancies in the First Applicant’s evidence.
The Tribunal did not accept the Second Applicant’s claim primarily because it was predicated on the First Applicant’s claim to be a Falun Gong practitioner, which the Tribunal did not accept. However, there were other reasons:
However, the confusion in her own evidence on two critical matters – exactly what happened to her on the day her husband was arrested and whether or not she has subsequently to report to the police – under mine her credibility and lead me to conclude that she is not a witness of truth and to reject her claims for that reason also.[48]
[48] Court Book 219 at [35]
However there is another matter for concern, in that Mr Gormly for the Applicants quite correctly raised the point that the Tribunal, in testing the First Applicant’s knowledge of Falun Gong, was relying on a text, the nature of which was not disclosed.
This very issue was covered in some detail by Mansfield J at first instance in SBCC v Minister for Immigration & Multicultural & Indigenous Affairs[49] at [27]:
I do not consider the Tribunal’s questioning of the applicant on his knowledge of the exercises and cultivation of Falun Gong is capable of indicating a closed mind on its part. It had to address his claim to have been a Falun gong practitioner since mid 2002. It had reasons to doubt its accuracy, based upon other aspects of the applicant’s evidence.[50] Its questions then were directed to testing his knowledge of Falun Gong exercises and practice. It did so using material which it identified, and which the applicant acknowledged he was aware of.[51] Members of the Tribunal in many instances develop a relatively detailed knowledge of the political or religious situation or of the political or religious beliefs of certain groups in many countries. So long as it acts consistently with the requirements of procedural fairness, the Tribunal informs itself as it thinks fit; s 420(2) and Pt 7 Div 4 of the Act; see also SFGB v Minister for immigration & Multicultural & Indigenous Affairs (2004) 77 ALD 402 at 408 (SFGB). This is not a case where the Tribunal did not disclose the source of its information:[52] Collector of Customs, Tasmania v Flinders Island Community Association (187) 7 FCR 205 at 210-211. Its questioning was not unreasoned or unreasonable. Its conclusion about the applicant’s level of knowledge was not shown to be based on selective material, nor to lack a foundation in the material referred to. Indeed the applicant accepted at the conclusion of that sequence of questions that what the Tribunal had put to him was based on what committed practitioners of Falun Gong ‘read again and again on a daily basis’.[53]
[49] [2006] FCA 270
[50] Emphasis added
[51] Emphasis added
[52] Emphasis added
[53] [2006] FCA 270 at [27]
In the decision referred to by Mansfield J, Collector of Customs, Tasmania v Flinders Island Community Association[54], which was an appeal from a decision of the Administrative Appeals Tribunal, Sheppard, Wilcox and Everett JJ held:
The Tribunal is, of course, entitled to inform itself on any matter in such manner as it thinks appropriate; it is not bound by the rules of evidence…However, it has long been recognised as the proper practice that a tribunal of fact which takes advantage of such an entitlement should disclose its action and the sources of its information…[55]
[54] (1985) 7 FCR 205
[55] (1985) 7 FCR 205 at 210-211.
The Tribunal decision in SBCC v Minister for Immigration & Multicultural & Indigenous Affairs was found to be without jurisdictional error by Mansfield J.[56] The decision of Mansfield J at first instance was found to be without error by the Full Court on appeal.[57] In my view, this Court should follow the decisions in SBCC, both at first instance and on appeal.
[56] [2006] FCA 270 at [33]
[57] [2006] FCAFC 129 at [46]-[50], [53]
In the matter under review, what the Tribunal did differed from the approach taken by the Tribunal in SBCC. The Tribunal in the matter under review did not disclose its source of information for examining the First Applicant about his knowledge of Falun Gong, either in the Decision Record or in the transcript of the hearing. The transcript of the hearing is annexed to the affidavit of Sue Archer affirmed 5th May 2009 and filed on 26th May 2009. All that the Tribunal did was refer to “my text”.[58]
[58] Transcript page 9
The other significant departure from the decision of the Tribunal in SBCC is that the Tribunal in the matter under review relied primarily on its finding that the First Applicant knew little, “almost nothing”, about Falun Gong[59] in order to deal with the cases of both Applicants. In the Tribunal decision in SBCC, the Tribunal did not regard that applicant as a credible witness for a number of reasons[60], which were quite separate from its finding about the applicant’s lack of knowledge of Falun Gong.
[59] Court Book 218 at [33]
[60] [2006] FCA 270 at [10]
It is for these reasons, I am satisfied that the Tribunal in the matter under review fell into jurisdictional error by asking itself the wrong question, as the Applicant’s counsel submits.
The application will be granted and orders in the nature of certiorari and mandamus will issue.
I will consider submissions as to costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 September 2009
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