SZLYX v Minister for Immigration
[2008] FMCA 991
•25 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYX v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 991 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of China claiming fear of persecution as a Falun Gong practitioner – whether the Tribunal breached Migration Act 1958 (Cth) s.424AA – credibility – whether the Tribunal breached Migration Act 1958 s.91R(3) – whether Tribunal breached Migration Act 1958 s.424 – merits review – credibility – information – information for the purpose of s.424AA means the same as information for the purpose of s.424A – where Tribunal telephoned a person to obtain information about the applicant – whether jurisdictional error – certiorari – mandamus. |
| Migration Act 1958 (Cth), ss.91R(3), 424, 424A, 424AA, 424B, 425, 441A |
| SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 followed SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 followed SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 followed SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 cited SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 followed SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384 followed SZLXR v Minister for Immigration and Citizenship [2008] FMCA 367 cited SZLHA v Minister for Immigration & Citizenship [2008] FCA 782 followed Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 followed Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed SZHCJ v Minister for Immigration and Multicultural Affairs [2007] FCA 205 followed SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 followed |
| Applicant: | SZLYX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 307 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 June 2008 |
| Date of Last Submission: | 30 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Mr Potts |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That an order in the nature of certiorari issue quashing the decision of the Refugee Review Tribunal signed on 14 December 2007 and handed down on 8 January 2008.
That an order in the nature of mandamus issue remitting the applicant’s application for a protection visa to the Refugee Review Tribunal for determination according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 307 of 2008
| SZLYX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of China, asks the Court to set aside a decision of the Refugee Review Tribunal made on 8th January 2008.
The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant now seeks an order by way of mandamus remitting her application for review of the delegate’s decision to the second respondent, the Refugee Review Tribunal, for determination according to law.
She has filed in court an amended application prepared with the advice of a barrister on the Refugee Review Tribunal legal Advice Panel,
Mr Smith, in which she claims that the Tribunal fell into jurisdictional error by committing a breach of s 424AA of the Migration Act 1958.
Background
The applicant arrived in Australia on 20th April 2007 and applied for a Protection (Class XA) visa on 18th May 2007, claiming a fear of persecution as a Falun Gong practitioner.
On 9th August 2007 a delegate of the Minister refused to grant the applicant a visa, finding that:
(a)her claims were uncorroborated and much of the information she provided was broad and lacking in relevant detail;
(b)her claim to have been detained by the Chinese authorities because of her beliefs could not be accepted because she had made no claims about any specific charges against her and had not provided any details about why or where she was detained or why she was released;
(c)there were inconsistencies in the applicant’s evidence; and
(d)there was no objective evidence to indicate that the applicant held a profile that would attract adverse information from the authorities if she were to return to the People’s Republic of China.[1]
[1] Court Book at 43-44
Application for Review by the Refugee Review Tribunal
The applicant applied to the Refugee Review Tribunal on
13th September 2007, seeking a review of the delegate’s decision.
On 14th September 2007 the Tribunal wrote to the applicant’s migration agent acknowledging receipt of her application and advising that the applicant may be invited to a hearing before the Tribunal.
On 25th September 2007 the Tribunal wrote to the applicant’s migration agent inviting the applicant to attend a hearing on 31st October 2007. The applicant replied to the invitation on 25th September, advising that she wanted to attend and that she required a Mandarin interpreter.
On 30th October 2007 the applicant faxed a submission to the Tribunal dated 26th October, saying:
I write to explain some questions that I haven’t explained clearly in my application to the Immigration Department.[2]
[2] Court Book 56
The applicant included references from Falun Gong practitioners, photographs of protests in which she had participated, a copy of a petition to the House of Representatives and some newspaper articles.
The applicant attended the hearing on 31st October 2007. The Tribunal granted an adjournment and wrote to the applicants’ migration agent on 1st November advising that the hearing would resume at 12:30 pm on 9th November.
The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. She told the Tribunal that she had been practising Falun Gong since 2005. She said that her sister had introduced her to Falun Gong to assist her with her health problems.
The applicant claimed to have been arrested by the police because she had been distributing leaflets near a supermarket bicycle park. She told the Tribunal that the police were responding to a theft in the area, but she thought they were after her and started to run away. The applicant said that the police caught her in a laneway and took her to the police station.
She claimed that the police held her from 9:30 pm until the early hours of the following morning. She said she was pushed into a cell and warned that distributing leaflets could lead to her arrest. The applicant claimed that the police assaulted her.
The applicant told the Tribunal that her family paid a fine and she was forced to sign a confession; she was told that she had a police record. She said that the police searched her home and found Falun Gong materials. She also said that she was subject to regular monitoring, house visits and interrogation.
The Refugee Review Tribunal Decision
The Tribunal signed its decision on 14th December 2007 and handed the decision down on 8th January 2008. The Tribunal Decision Record can be found in the Court Book at pages 120 to 135. The Decision Record sets out the claims and evidence, being the applicant’s protection visa application, her pre-hearing submission of 30th October 2007, and her evidence to the Tribunal on 31st October and
9th November.
In the summary of the applicant’s evidence, the Tribunal described how it asked the applicant about her attendance at various Falun Gong practice sites and events:
She said she goes to the home of a teacher, Mrs Huang (Wong), each Wednesday night. She gave the Tribunal Mrs Huang’s telephone number, but did not have further contact details…
At the second session, the applicant said that she told Mrs Huang about the Tribunal hearing; she offered the Tribunal her telephone number. The Tribunal said that it had already taken the initiative to contact Mrs Huang, and she had confirmed the applicant’s attendance at the Wednesday night sessions.[3]
[3] Court Book 130
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons can be found in the Court Book at pages 131 to 135. The Tribunal noted the applicant’s Chinese passport, considered her documentary and oral evidence and accepted that she is a national of the People’s Republic of China.
The Tribunal considered the applicant’s claims in this way:
The applicant claims to fear persecution in China as a Falun Gong practitioner, because of her past practice and protest activity, and consequent mistreatment in China, and because the PRC authorities will have learned of her Falun Gong activities in Australia, particularly through the publication of her image on the internet[4].
[4] Court Book 131
The Tribunal did not accept that the applicant had any associations with Falun Gong in China, actual or perceived. It gave these reasons:
(1)The Tribunal did not accept the applicant’s account of her introduction to Falun Gong, particularly as she “struggled to explain the delay”[5] between her sister becoming a practitioner in 2001 and telling her about the practice in 2005.
(2)The Tribunal found the applicant’s claimed Falun Gong activities from 2005 to be “problematic”[6] because she had very little incidental information beyond the bare bones of her refugee claims.
(3)The Tribunal found the applicant’s conduct was inconsistent with that of a person who is a Falun Gong practitioner who had been mistreated and who feared further persecution for that reason. This was discussed at the hearing.
(4)The Tribunal found that the conduct of the authorities of the People’s Republic of China towards the applicant indicated that they did not regard her as a Falun Gong practitioner or a person of interest for any other reason.
(5)Whilst the Tribunal accepted that the applicant was familiar with aspects of Falun Gong, but found that it may have been derived from practice in China or more recent practice in Australia, and thus did not displace the Tribunal’s other concerns.
(6)The Tribunal did not accept that the applicant has a sister who is a Falun Gong practitioner and therefore did not accept that she was at risk as a family member of a Falun Gong practitioner or someone who might be perceived as sympathetic to Falun Gong practitioners.
[5] Court Book 132
[6] Ibid
Having found that the applicant had no association with Falun Gong, actual or perceived, the Tribunal found that the applicant was not a credible witness. The Tribunal rejected her claims of past harm because of an association with Falun Gong.
The Tribunal then discussed the applicant’s activities in Australia, saying:
The Tribunal accepts that the applicant has engaged in Falun Gong and related activities in Australia, based on her oral evidence, the photographs and the witness statements. However, it is not satisfied that she has done so otherwise than for the purpose of strengthening her claims to be a refugee. It must therefore disregard such conduct pursuant to s. 91R(3).[7]
[7] Court Book 134
The Tribunal set out its reasons for that lack of satisfaction:
(1)Because it had found that the applicant had no association with or interest in Falun Gong in China and she was not a credible witness, the Tribunal was not satisfied that the applicant had any reason to establish contacts with Falun Gong practitioners in Australia other than for the purpose of her refugee application.
(2)The applicant delayed looking for Falun Gong practitioners until around the same time as she lodged her application for a protection visa.
(3)The nature and extent of the applicant’s Falun Gong conduct created the impression that her objective was to acquire the necessary knowledge, endorsements and photographs to ensure the success of her refugee application.
(4)The Tribunal accepted that the applicant had acquired a reasonable knowledge of Falun Gong and considered whether the applicant might have developed any additional purpose that might bring her conduct outside the scope of s 91R(3). However, the Tribunal was not satisfied that there was any additional purpose, such as genuine interest or a social purpose.
The Tribunal then stated:
The Tribunal has considered whether the applicant, over the course of her study and contact with Falun Gong during some 6 months in Australia, has developed a genuine affinity with the practice. In its view, the applicant’s recent acquisition of knowledge about Falun Gong exercises and practices do not establish that she has formed any genuine commitment to it.[8]
[8] Court Book 134
The Tribunal found that the applicant was not a genuine Falun Gong practitioner and that she would not be perceived as one. It accepted that she had engaged in Falun Gong activities in Australia but was not satisfied that she did so other than for the purpose of strengthening her claim to be a refugee. It did not accept that she had acquired a genuine commitment to Falun Gong.
The Tribunal was not satisfied that the applicant had a well-founded fear of Convention-related persecution if she returned to China and affirmed the decision not grant her a Protection (Class XA) visa.
Application for Judicial Review
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 8th February 2008.
The application was originally listed for final hearing on 29th April, but was adjourned at the applicant’s request to allow her to obtain a transcript in support of a new ground of review, an alleged breach of
s 424AA. She has filed in court an outline of an amended application containing that ground. She has also filed a partial transcript of the hearing, containing the words of the Tribunal member.
I do not understand the applicant to have abandoned the two grounds in her original application. The first ground says:
1. The RRT member has failed to assess the risks I will be facing should I return to China. The facts which are publicly published on websites and newspaper are not accepted by the RRT members as undouble (sic) truth are not reasonable. The RRT member has failed to give a fair assessment to my application. Under the condition of “nature of justice” (sic), the RRT member should have assessed all the evidence in front of him. On the contrary, he has made a decision base on his assumption or impression of my credibility, while ignoring all the reference letters provided by my fellow Falungong practitioners, station leaders and photos published on Falungong websites.
The applicant’s second ground says:
2. The RRT member has failed to assess the great danger I will be facing on returning to China. Even though he holds doubts about my involvement with Falungong in China, he should have assessed properly whether I would be in danger should I return to China at moment. By ignoring the second part, it means that he has failed too assess my application against the Refugee definition given by the UN.
The applicant did not file a written outline of submissions.
She attended court and said that obtaining a full transcript of the RRT hearing was very expensive, more than she could afford. The focus of her transcript was to find out whether the Tribunal member had given her an opportunity to respond to his doubts. She said she was not given that opportunity.
The applicant went on to say that she had been persecuted in China. She was tortured and had to go to hospital to have 10 stitches in her head. She said she could not understand why, since the Tribunal accepted her as a Falun Gong member, the tribunal did not accept that she was persecuted. She said that she had participated in various Falun Gong activities in Australia and the Tribunal failed to consider the circumstances she would be in if she had to return to China.
Mr Potts of counsel, who appeared for the Minister, conceded that there were reasons why the applicant could be entitled to relief, because the Tribunal had committed a jurisdictional error because it had breached s 91R(3) of the Migration Act by having regard to conduct that it had disregarded. He conceded that, on the authority of the recent decision of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship[9], the Tribunal had breached subsection 91R(3) where it had disregarded the applicant’s conduct in Australia because it was not satisfied that the applicant had engaged in Falun Gong and activities in Australia otherwise than for the purpose of strengthening her claims to be a refugee[10].
[9] [2008] FCAFC 105
[10] Court Book 134
However, the Tribunal made a finding that the applicant showed she was familiar with aspects of Falun Gong, which “may have been derived from practice in China, as she claimed, or more recent practice in Australia”[11].
[11] Court Book 133
The Tribunal also made this finding:
The Tribunal has considered whether the applicant, over the course of her study and contact with Falun Gong during some 6 months in Australia, has developed a genuine affinity with the practice. In its view, the applicant’s recent acquisition of knowledge about Falun Gong exercises and practices do not establish that she has formed any genuine commitment to it.
The photographs and witness statements also do not support such a conclusion.[12][12] Court Book 134
The Tribunal also went on to find that:
The Tribunal does not accept that the applicant has, in the meantime, acquired a genuine commitment to Falun Gong.[13]
[13] Court Book 135
Mr Potts made the formal submission that SZJGV v Minister for Immigration and Citizenship is wrongly decided, whilst conceding that the Federal Magistrates Court is bound to follow it.
In respect of the latter breach, Mr Potts submitted that even if it were a breach, it was not a breach to the applicant’s detriment. He referred to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship[14] at [29] and [87]-[88], submitting that if the Tribunal’s failure to comply with s 91R(3) was a jurisdictional error, it was not one that should lead the Court to grant relief in the exercise of its discretion. The breach was immaterial to the result.
[14] (2007) 235 ALR 609; [2007] HCA 26
Mr Potts conceded that there appeared to be a breach of s 424 of the Act by the Tribunal where it had obtained additional information by telephone from the applicant’s teacher, Mrs Huang[15]. He referred to the recent decision of the Full Court of the Federal Court in SZKTI v Minister for Immigration and Citizenship[16], where the Court found jurisdictional error in a case where the Tribunal had obtained additional information by telephone in a manner that did not comply with the procedures in ss 424(3) and 424B[17].
[15] Court Book 130
[16] [2008] FCAFC 83
[17] at [43], [45] and [50]
Mr Potts told the Court that the Minister was seeking special leave to appeal to the High Court in SZKTI. He submitted that SZKTI was wrongly decided but conceded that this Court is bound to follow it.
Turning to the applicant’s ground in her amended application, that the Tribunal had breached the provisions of s 424AA, Mr Potts submitted that s 424AA is the statutory response to the High Court’s decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[18] and the strictures of s 424A(2), which requires that any invitation to comment under s 424A be given in writing. He submitted that the intended effect of s 424AA was to provide a mechanism by which the Tribunal could comply with s 424A by giving oral particulars at a hearing held pursuant to s 425.
[18] (2005) 228 CLR 294; [2005] HCA 24
Mr Potts submitted that, unlike s 424A, s 424AA does not impose any freestanding obligation on the Tribunal. If the Tribunal fails to comply with the requirements of s 424AA in a case in which it purports to give oral particulars at a hearing, the only consequence would conceivably be a breach of s 424A. He submitted that the alleged failure to comply with s 424AA, even if made out, would not constitute a jurisdictional error, relying on the decision of Marshall J in SZLQD v Minister for Immigration and Citizenship[19] at [12].
[19] [2008] FCA 739
Mr Potts drew the Court’s attention to the decisions of this Court in SZLTC v Minister for Immigration and Citizenship[20] at [15]-[18] and SZLXR v Minister for Immigration and Citizenship[21] at [11].
[20] [2008] FMCA 384
[21] [2008] FMCA 367
Mr Potts submitted that the only information that was before the Tribunal was information that the application had provided either to the Department or the Tribunal directly. This information is excluded from the operation of s 424A(1) by s 424A(3)(ba) and s 424A(3)(b) respectively. The only exception to this would be the information provided by Mrs Huang when the Tribunal contacted her directly by telephone. Mr Potts submitted that the information from Mrs Huang did not appear to have been relied on by the Tribunal, not did it appear to be adverse to the applicant’s interests.
Mr Potts submitted that there is nothing on the material before the Court which would suggest that, to the extent that the Tribunal raised matters for the applicant’s comment, the manner in which it did so failed to comply with s 424AA.
Conclusions
There are five matters for consideration:
(a)the two grounds in the applicant’s original application, which she has not abandoned;
(b)the applicant’s additional ground of review;
(c)the apparent breach of s 424 of the Migration Act: and
(d)the apparent breach of s 91R(3) which counsel for the Minister raised during oral argument.
The first ground in the applicant’s application says:
The RRT member has failed to assess the risks I will be facing should I return to China. The facts which are publicly published on websites and newspaper are not accepted by RRT members as undouble (sic) truth are not reasonable. The RRT member has failed to give a fair assessment to my application. Under the condition of “nature of justice”, the RRT member should have assessed all the evidence in front of him. On the contrary he has made a decision base on his assumption or impression of my credibility, while ignoring all the reference letters provided by my fellow Falungong practitioners, station leaders, and photos published on Falungong websites.
I agree with the Minister’s submission that this ground is a composite complaint that cavils with the Tribunal’s factual findings. A reading of the Tribunal Decision Record shows that the Tribunal did consider the applicant’s evidence, including the documents and photographs provided by the applicant.
The Tribunal made findings of fact which were open to it on the evidence. The task of making findings of fact, including findings as to credibility, is for the Tribunal alone (SZLHA v Minister for Immigration & Citizenship[22], at [5], citing Kopalapillai v Minister for Immigration & Multicultural Affairs[23]. The Court cannot conduct a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[24]; SZHCJ v Minister for Immigration and Multicultural Affairs[25] at [3]; SZLHM v Minister for Immigration & Citizenship[26] at [8] – [9]).
[22] [2008] FCA 782
[23] (1998) 86 FCR 547 at 552, 559
[24] (1996) 185 CLR 259 at 272
[25] [2007] FCA 205
[26] [2008] FCA 754
The ground does not disclose any jurisdictional error.
The applicant’s second ground says:
The RRT member has failed to asses the great danger I will be facing on returning to China. Even though he holds doubts about my involvement with Falungong in China, he should have assessed properly whether I would be in danger should I return to China at moment. By ignoring the second part, it means that he has failed to assess my application against the Refugee definition given by UN.
The Tribunal did assess whether the applicant faced a real chance of persecution for her beliefs or any other reason upon her return to China, and found that she did not. This ground fails.
The ground in the applicant’s amended application claims a breach of
s 424AA of the Migration Act:
The Tribunal breached s 424AA of the Migration Act 1958 in circumstances where it gave the applicant clear particulars of information it considered would be the reason or part of the reason for its decision, but failed to:
(a)ensure, as far as was reasonably practicable, that the applicant understood the consequences of the information being relied on in affirming the decision that is under review; and
(b)orally invite the applicant to comment on or respond to the information.
A perusal of the partial transcript of the Tribunal hearing on
31st October 2007shows that the Tribunal Member raised some concerns with the applicant about her claims:
(a)the fact that the applicant obtained an Australian visa in February but did not leave China until two months later, pointing out that this gave the impression that the applicant did not flee persecution in China but left “at a leisurely pace” because she “had no reason to rush to leave China”[27];
(b)the Tribunal asked the applicant whether her refugee application was a “sophisticated fraud” and whether someone might have helped her with her application as a way of obtaining permanent residency”[28];
(c)the Tribunal alerted the applicant to a concern that the applicant’s sister started Falun Gong practice in 2001 but only recommended it to the applicant four years later:
And that after such a long period that umm before there are results that someone like yourself is attracted to it, given that it is a prohibited practice in China. It doesn’t make sense to me and it raises a doubt about what you are telling me[29].
(d)The Tribunal put to the applicant that it seemed “a lie” that her sister gave her Falun Gong material for the first time in May 2005 but less than three months later she was embarking on a very dangerous activity, a “most dangerous form of promotion” of Falun Gong[30].
(e)The Tribunal found “curious” the fact that when the local authorities searched her house they found Falun Gong material that would bring her into danger but did not find her passport, nor did they check to see whether she had one[31]; and
(f)The Tribunal Member said “Now…the issue however for me is to consider whether your knowledge of Falun Gong and your conduct in Australia um have simply arisen in Australia in order to achieve residence, arr refugee status and residency or whether it’s a longer term interest and a genuine commitment. In our discussion today I’ve given arr the particulars of the information I am concerned about and we’ve had a discussion about those, I think you’ve commented on them…that’s as we’ve discussed it.
I’m offering you the opportunity if you know what that information is, I’m offering you the opportunity to do… you feel …I’ll give you a chance a little bit later to comment on the things that are of concern to me.
I will try to arrange that for the next week, when we meet again so that I can err can um receive from you any comments or responses that you would like to give me.[32]
[27] Transcript page 4
[28] Transcript page 6
[29] Transcript page 8
[30] Transcript page 11
[31] Transcript pages 13 and 14
[32] Transcript page 18
The hearing was adjourned until 9th November 2007. The Tribunal Member put these things to the applicant during the hearing:
(a)…I explained to you that at that time the adverse information and the concerns that I had during the course of our discussion. We ran out of time though and I wanted to give you a proper opportunity to give your comments[33];
(b)I need to talk to you about your experiences in China because umm, if I do or do not believe that you are a Falun Gong practitioner before coming to Australia that will err, that will, may well have an influence on whether I accept the refugee claims you are now making[34]; and
(c)…I’ve noted everything you’ve told me, and I’m just saying do you want to add anything either right now or a little bit later…do you want to add anything? OK, if there is anything you want to add in response to what I have told you or if you want to give me anything else we can do that right now.[35]
[33] Transcript page 19
[34] Transcript page 20
[35] Transcript page 24
In SZLQD v Minister for Immigration and Citizenship[36] at [12] Marshall J said of s 424AA:
That section places no obligation on the Tribunal but enables it, if it so chooses, to orally give to an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review. It does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on. So much is apparent from that part of the explanatory memorandum accompanying the bill which introduced s 424AA…
[36] supra
In SZLTC v Minister for Immigration[37] at [18], Driver FM said:
It is significant that Parliament has chosen to refer to information for the purposes of s 424AA(a) in the same terms as appears in
s 424A(1)(a). Because Parliament has expressed itself in the same terms in both sections, the interpretation given to the term ‘information’ for the purposes of s 424A(1)(a) is relevant.
[37] supra
It appears to be quite clear that the meaning of “information” in both sections is the same. Thus, following the decision in SZLQD, independent country information is excluded, as would information provided by the applicant for the purposes of the review or the protection visa application. It should be clear that the decision in SZLQD is a decision on review from the Federal Magistrates Court and is binding on this Court. There appears to have been no need for the equivalent of s 424A(3) to have been inserted in s 424AA.
In the decision under review, there was no country information that was relevant. The Tribunal had concerns about matters that had arisen from the applicant’s own evidence, either from material provided to the Department for the purpose of the application for a protection visa or from material provided by the applicant directly to the Tribunal.
The former would be excluded by s 424A(3)(ba), the latter by
s 424A(3)(b).
The only exception to this, as Mr Potts pointed out, is the information provided to the Tribunal over the telephone by Mrs Huang.
That information, however, was information that supported the applicant’s claim[38]. Mrs Huang’s advice to the Tribunal would not, in any sense, be “information that would be the reason, or a part of the reason, for affirming the decision that is under review” (s 424AA(a)) because it did not contain a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations (SZBYR[39] at [17]). There may be other difficulties about the way in which the information was obtained from Mrs Huang, which will be considered later.
[38] Court Book 130
[39] supra
The Tribunal’s decision turned on its disbelief of the applicant’s claims. It raised its doubts about aspects of her claims with the applicant at the hearing. There was no information that formed the reason or part of the reason for affirming the decision under review that should have been put to the applicant for comment, either under section 424A(1) or s 424AA, which was not put. There is no breach of s 424A or s 424AA.
This ground fails.
The Tribunal obtained information from Mrs Huang by telephone. It is clear that it did so in a way which did not comply with the procedures in s 424(3) and s 424B. In the recent decision of SZKTI v Minister for Immigration and Citizenship[40] the Full Court of the Federal Court ((Tamberlin, Goldberg and Rares JJ) said:
Parliament provided a code in ss 424, 424A, 424B and 424C which made extensive provision for the tribunal to obtain information including by means of an invitation to a person to provide it. Those provisions specified the means by which the information was to be sought, and the consequences for its non-provision. We are of opinion that the Parliament did not authorise the tribunal to get additional information from a person pursuant to its general power under s 424(1) without complying with the code of procedure set out in ss 424(2) and (3)[41].
[40] supra
[41] SZKTI at [43]
Under s 424(3), the invitation to Mrs Huang to give information must have been in the form of a document that must be given to the person by one of the methods specified in s441A. Therefore a telephone call will not suffice.
Accordingly, the Tribunal in this case did not follow the procedure specified in the Act for the provision by a person invited to give additional information and thereby committed a jurisdictional error (see SZKTI at [45]).
The Minister has submitted that SZKTI is wrongly decided and is seeking special leave to appeal to the High Court. That is as may be, but SZKTI is a decision on appeal from the Federal Magistrates Court and is therefore binding on this Court. I note that in a more recent decision of the Full Court, SZKCQ v Minister for Immigration and Citizenship[42], Stone, Tracey and Buchanan JJ expressed the view that SZKTI was not plainly wrong but was, in fact, correct and should be followed[43]. Again, it is an appeal from this Court and therefore binding.
[42] [2008] FCAFC 119
[43] per Stone and Tracey JJ at [6] and Buchanan J at [63]
However, the difference in this case is, as Mr Potts submitted, that the information obtained from Mrs Huang played no part in the Tribunal’s reasoning in deciding to affirm the delegate’s decision. The information supported the applicant’s case. The error is immaterial because it had no effect on the outcome (see SZBYR[44] per Kirby J at [87]-[88]. This is a matter for discretionary refusal of relief in respect of that ground.
[44] supra
However, that is not the end of the matter. There is still the question of the breach of s 91R(3) by the Tribunal, as Mr Potts quite properly pointed out.
The Tribunal had disregarded information about the applicant’s conduct as a Falun Gong practitioner in Australia because it was not satisfied that she had engaged in that conduct other than for the purpose of strengthening her claims to be a refugee. However, the Tribunal went on to consider whether the applicant had, over the course of her study of and contact with Falun Gong during some 6 months in Australia, developed a genuine affinity with the practice, but decided that she had not[45]. This was a clear breach of s 91R(3) and the Tribunal made a jurisdictional error, as set out in SZJGV v Minister for Immigration and Citizenship[46] at [27] –[28] and [30].
[45] Court Book 134 and 135
[46] supra
It follows that the application must be granted and orders in the nature of certiorari and mandamus must issue.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 16 July 2008
0
13
1