SZMBT v Minister for Immigration

[2008] FMCA 862

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMBT v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 862

MIGRATION – Review of decision of Refugee Review Tribunal – Protection (Class XA) visa – jurisdictional error – breach of s.425 of the Act – applicant denied opportunity to give evidence on determinative issue regarding his son – failure to accord procedural fairness – breach of s.414 of the Act – failure to consider integer of applicant’s claims in regard to his son – whether Court should exercise its discretion to refuse relief sought.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 425, 474

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64
Aporo v Minister for Immigration & Citizenship [2008] FCA 102
Htun v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1802
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Abebe v Cth (1999) 197 CLR 510
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: SZMBT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 683 of 2008

Judgment of: Orchiston FM

Hearing date: 10 June 2008

Date of Last Submission: 10 June 2008

Delivered at: Sydney

Delivered on: 26 June 2008

REPRESENTATION

Counsel for the Applicant: Mr J.F. Gormly

Counsel for the Respondent: Mr M. Cleary

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed on 20 March 2008 is dismissed.  The amended application filed on 10 June 2008 is upheld.

2. A writ of certiorari, directed to the Refugee Review Tribunal, shall issue quashing the decision of the Tribunal signed on 22 January 2008 and handed down on 14 February 2008.

3. A writ of prohibition shall issue restraining the first respondent from acting upon, or giving effect to, or proceeding further on the basis of the Tribunal’s decision referred to in Order 1 above.

4. A writ of mandamus, directed to the Refugee Review Tribunal, shall issue requiring the Tribunal to redetermine, according to law, the review application made on 25 October 2007 by the applicant for review of the decision of the delegate of the first respondent to refuse to grant the applicant a protection visa.

5. The first respondent to pay the applicant’s costs fixed in the sum of $6,319 payable within twenty-eight (28) days of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 683 of 2008

SZMBT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 14 February 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.

Background

1. The applicant was born on 14 September 1964.  He claims to be a national of China and of Christian faith.

2. The applicant arrived in Australia on 14 July 2007 on a Chinese passport issued in his own name.

3. The applicant lodged an application for a protection visa on 22 August 2007 on the basis that he was the leader of a Christian Home Church in China and had been arrested and interrogated in the past due to his involvement in a Christian Home Church.  The applicant also claimed that his son had been persecuted for his involvement in the Home Church.  Since moving to Australia, the applicant's son has been diagnosed with a “mental problem” and required medical treatment (Court Book (CB) 27).

4. On 20 September 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (CB 47-54) (see Legislative framework).

5. On 25 October 2007 the applicant applied to the Tribunal for review of the delegate’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

5. Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

1. On 7 November 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 5 December 2007 to give oral evidence and present arguments.  The applicant appeared before the Tribunal on that day, with the assistance of a Mandarin interpreter.

The applicant’s claims and evidence

1. The Tribunal summarised the applicant’s claims and evidence at CB 93 as follows:

   Essentially the applicant claims that in 1988 he became a Christian and he began attending house church gatherings, held in different homes. He claims that in 1992 or 1993 he was detained by the authorities for 2 days because of his attendance at a house church. He claims that he has been arrested or warned or questioned by the authorities 5 or 6 times sine 1993. He fears he will be persecuted by the authorities because of his religious beliefs. He claims that he had to pay a bribe to obtain a passport.

The Tribunal’s findings and reasons (CB 93-95)

1. The Tribunal accepted that the applicant was a Protestant Christian, but did not accept the applicant’s claims of persecution in China based on his religious beliefs.

2. The Tribunal found that the applicant was not a reliable, credible or truthful witness, based on what the Tribunal considered were significant inconsistencies in the applicant’s evidence, including between his oral and written claims.

3. The Tribunal was of the view that the applicant had fabricated his evidence about having had 5 or 6 arrests or interrogations or warnings since 1992 or 1993 and that the applicant had not had any adverse encounters with the authorities regarding his religious beliefs for at least 14 years.

4. Country information indicated that the treatment of house Churches in China by government officials varies by region.  Given the lack of interest in the applicant since 1993 by the authorities in his area, the Tribunal was of the view that the authorities were tolerant of the house Church in which the applicant had been participating and that he was able to practise his religion freely.

5. The Tribunal did not accept that the applicant had suffered serious harm in China after 1993 as a result of belonging to unregistered family churches.

6. The Tribunal considered that the primary reason for the applicant wanting to stay in Australia was concern for his son, who had earlier arrived in Australia under a valid visa, and, according to the applicant was unwell.

7. For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm from his stated or perceived involvement in a Christian Home Church in China.  The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if he were to return to China for reasons of being involved in a Christian Home Church, a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.

The proceedings before this Court

1. The applicant filed the application in this Court on 20 March 2008 setting out 1 ground of review of the Tribunal’s decision.  The applicant filed an amended application on 10 June 2008 setting out 2 grounds for review.

2. Mr J F Gormly of counsel appeared before this Court for the applicant on 10 June 2008.  Mr Cleary of counsel appeared for the first respondent.

Grounds of application

Ground 1 of the application

1. Ground 1 of the application was not pressed by the applicant.

Grounds of amended application

Ground 1 of the amended application

1. Ground 1 of the amended application states that:

   (1)The Tribunal failed to comply with the requirements of s 425 Migration Act 1958 in that it did not accord the applicant procedural fairness because it refused to allow the applicant to give evidence or to make submissions on determinative issues.

   Particulars

   a)In the original protection visa application the applicant had claimed that:

   ·he was in charge of an illegal family church;

   ·because of his influence his son was involved with religious activities in family churches from a young age;

   ·his son was the victim of persecution from the Chinese government and suffered discrimination and serious mental mistreatment because of his religious belief;

   ·his son would suffer more persecution from the Chinese government for his involvement in family churches; and that

   ·he worried about his own and his son’s safety in China;

   b)At the hearing the Tribunal explicitly refused to allow the applicant’s request to give evidence on what had happened to his son;

   c)In its decision the Tribunal accepted that the applicant was a Christian and a protestant. It found that the applicant had not been arrested or detained for his religious beliefs for 14 years. On the basis of these findings the Tribunal concluded that:

   ·the local authorities were tolerant of the applicant’ house church;

   ·the applicant was able to practise his religion freely; and that

   ·therefore the applicant’s fear of persecution was not well founded;

   d)In reaching this conclusion the Tribunal did not hear or consider the applicant’s claims about his son’s persecution by the Chinese government for his religious belief and his involvement in family churches;

   e)These claims were highly relevant to the attitudes of the local officials to religious belief and practice and therefore went to the Tribunal’s findings about the tolerance of the local officials for the applicant’s house church;

   f)This finding of tolerance on the part of the local officials was the basis of the Tribunal’s finding that the applicant’s fear of persecution was not well founded.

2. The applicant contends that the Tribunal failed to comply with the requirements of s.425 of the Act in that it refused to allow the applicant to give evidence and to make submissions on the religious persecution of his son in China, notwithstanding that this was directly relevant to the determinative issues in this case.

3. Section 425 of the Act requires a Tribunal to invite an applicant to appear before it to give evidence and present arguments “relating to the issues arising in relation to the decision under review.”  Failure to comply with this provision will amount to jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

4. In his application for a protection visa lodged on 22 August 2007, the applicant had not included his son as a member of his family because "He has his visa himself" (CB 3). The applicant's son, born on 31 March 1990, (and aged 17 at the time of the Tribunal hearing), had earlier arrived in Australia from China on 31 March 2007 on a valid visa.

5. However, in his statement attached to the protection visa application, the applicant claimed that his son had suffered discrimination or persecution on religious grounds in China (CB 27):

   My son was born in 1990.  Influenced by me, my son was involved with religious activities when he was very young. He attended religious activity when he was in China and suffered discrimination. He suffered serious mental mistreatment because of his religious belief. Because of his involvement with family churches, I worried that he would suffer more persecution from the Chinese Government; I therefore tried very hard to make him study here in Australia. We had not realized that he had any mental problems before he came to Australia. Now, after coming to Australia, he was diagnosed to have mental problem and need medical treatment. Now I am in Australia I worry about my own safety and my son’s safety in China. I worry about my son’s illness every day. My son has become the victim of the persecution from the Chinese Government for his religious belief; I do not want to return to China because of my involvement with family churches in China too.

6. At the Tribunal hearing the applicant stated that:

   My son came to Australia on 31^st March 2007.  Not long after he arrived in Australia he was sick and I paid 2800 Yuen to ask some relative and friends to get the passport for me (Tribunal transcript, 5 December 2007, p 2);

   and

   My son is now living with me, he's discharged from the hospital (Tribunal transcript, p 4).

7. Subsequently, the following pertinent exchange took place between the Tribunal member and the applicant (Tribunal transcript, pp 16-17):

   Tribunal member:  You had just told me that you have not been, that you haven't had any problems with the authorities since 1993, is that right?
   Applicant:  Yes, that's right, no trouble since 1993.
   Tribunal member:  Are you frightened to return to China
   Applicant: Yes.
   Tribunal member: Why?
   Applicant: Because in China people do not have human right.
   Tribunal member: So what do you think would happen to you if you went back to China?
   Applicant: If I go back to China I think I mainly worry that I would be worried about my son. You know my son used to be very healthy, very fit, and I am just wondering why he suddenly became sick, and I think my son you know this year he is only seventeen years old, he is very worried about us.
   Tribunal member: I realise that your son has been unwell and that this must be a concern for you, but my job here is to assess whether you are a refugee.
   Applicant: Do you want me to mention my son, you know what happened to my son or something? [emphasis added]

   Tribunal member: No, because your son is not part of your application for refugee status. [emphasis added] I have to decide whether you have a well founded fear of persecution if you return to China. And what you are saying to me is that you have not had any trouble with the authorities since 1993 so at this stage I am concerned that in fact nothing would happen to you if you went back to China.

8. After some further exchange, the applicant stated to the Tribunal that:

   You know since 1993 you know my son was very worried that a member of my family or we would be put at risk because of our religious activities, so that's why we borrowed a lot of money to get my son here to Australia to study here (Tribunal transcript, pp 17-18).

9. Towards the close of the Tribunal hearing, in response to being asked whether he wanted to say anything further, the applicant stated:

   I really hope your member because I like Australia very much I hope really hope your member to make me stay in Australia permanently to be a good citizen here.  Don't make more trouble to worsen my son's health problem…. [In China] people cannot have their due freedom (Transcript transcript, p 26).

10. At the end of the hearing the Tribunal asked the applicant, on a number of occasions, whether there was anything else that he wanted to say or were there other things that he had not told the Tribunal about (Tribunal transcript, pp 26, 27, 28). The Tribunal also asked the applicant whether he wanted any more time (Tribunal transcript, pp 27-28).

11. The Tribunal decision record summarises these parts of the hearing under Claims and Evidence as follows:

    The Tribunal asked the applicant why he is frightened to return to China.  The applicant stated that he is frightened to return to China because people do not have human rights in China.  If he returns to China he is mainly worried about his son who used to be very healthy but who has now become unwell.  The Tribunal explained to the applicant that the Tribunal will be assessing the applicant’s claim and not his son’s situation, as the applicant’s son is not part of the applicant’s visa application (CB 86).

12. The Tribunal further reported the applicant’s evidence at the hearing that “the applicant stated that his son was very concerned that they were at risk…” (CB 86.8). The Tribunal also reported the applicant's evidence that, of his family, it was only he and his son who had “been involved in the applicant’s religion in China” (CB 86.9).

13. The Tribunal also stated:

    The Tribunal asked the applicant if he wanted to say anything further.  The applicant stated that he likes Australia and wants to stay and he does not want his son's health to get worse.  In China, it is hard to live without freedom (CB 88).

14. In its Findings and Reasons the Tribunal stated:

    The applicant also stated that he came to Australia to visit his son who is studying in Australia but who has developed some mental problems.  The applicant is understandably concerned about returning to China and leaving his son when his son is unwell.  The Tribunal is of the view that concern for his son is the applicant's primary reason for wanting to stay in Australia (CB 95).

15. Having considered the above matters, I accept the following submission by the first respondent that any fear that the applicant may have concerning the health and welfare of his son, if the applicant were to return to China and the son remains in Australia, does not satisfy the requirement for a protection visa that the applicant has a well founded fear of persecution for a Convention reason if he returns to China:

    the evidence that his son is unwell and, if [the applicant] returns to China, he'll be worried about that, isn't a basis for establishing a well-founded fear of persecution (Court transcript 10/6/08, pp 38-39).

16. However, the application before this Court does not rest on this basis.

17. Ground 1 of the amended application turns on what took place at the Tribunal hearing, in particular the exchange between the Tribunal member and the applicant recorded at pages 16-17 of the Tribunal transcript, (set out above), and its implications for what the applicant contends were the rights of the applicant to give evidence and to make submissions on the religious persecution of his son in China, which was directly relevant to the determinative issues in his case.  Mr Gormly submits in this regard that:

    The Tribunal failed to comply with the requirements of s 425 Migration Act 1958 in that it did not accord the applicant procedural fairness because it refused the applicant’s request to give evidence or to make submissions on his son’s persecution by the Chinese authorities for his religious belief and his participation in family churches.

    The claims in relation to the son’s persecution went directly to the determinative issue of the local authorities tolerance of the applicant’s house church, the ability of the applicant to practise his religion freely and the well foundedness of the applicant’s fears.

1. In response, the first respondent submits that:

   At no time during the oral hearing did the applicant claim that his son’s experience was relevant to the issue of the applicant’s ability to practise religion freely in China …  he was never denied an opportunity at the hearing to make such a claim.  The applicant has misrepresented the extract of the transcript he refers to on page 17 by quoting the question and answer on that page in isolation and out of context.

   The extract identified by the applicant at page 17 [of the Tribunal transcript] must be read in the context of the questioning that preceded it on page 16, and the questioning that proceeded it on page 17 and following. When on page 17 of the transcript the Tribunal Member declines the applicant’s offer to give evidence about his younger son, the Tribunal Member plainly did so because she believed (correctly understood in its context) that the applicant was about to give evidence about his son’s mental illness. The applicant’s exchange with the Tribunal Member on page 16 immediately preceding this exchange on page 17 makes this clear. It is also clear from a reading of the Tribunal’s decision at CB 86 that the Tribunal was making it clear to the applicant that its function was to assess the applicant’s claims, not his son’s situation.

2. I accept that part of the above submission by the first respondent that at no time during the Tribunal hearing did the applicant specifically claim that his son’s experience in China was relevant to the issue of the applicant’s ability to practise religion freely in China.  Nonetheless, it cannot be assumed in this regard that if, in response to the applicant's question at page 17 of the Tribunal transcript, the Tribunal had given the applicant the opportunity to speak about his son, the applicant would necessarily have confined his remarks to his son's current mental state or other matters unrelated to his son's alleged religious persecution in China, as the first respondent suggests.

3. As indicated above, the applicant in his application for a protection visa had included claims of religious persecution of his son in China.  The applicant had directly asked the Tribunal "Do you want me to mention my son, you know what happened to my son or something".  What the applicant meant by the phrase "what happened to my son" cannot now be determined, given that the Tribunal replied "No".

4. I also reject that part of the applicant's submission that the applicant was “necessarily” seeking to provide evidence as to his son's alleged persecution in China and thus how it related to the applicant’s claims.  As indicated above, it is not possible to discern from the Tribunal transcript whether or not the applicant would have embarked on such a course.

5. Nonetheless, I consider that, by answering "No", the Tribunal denied the applicant an opportunity to give evidence and to present arguments concerning his son, which may (or may not) have included claims concerning his son’s persecution by the Chinese authorities for his religious beliefs and his participation in family churches and which may have touched upon or reinforced the applicant’s claims of persecution for the same reasons (see post).

6. The first respondent further submits that:

   There was no ‘request’ made by the applicant to make submissions that was ‘denied’ by the Tribunal Member. On the contrary the [Tribunal] transcript suggests the applicant had no problem giving his evidence, and that both at the commencement of the hearing (page 1) and towards the conclusion of the hearing (page 28) the Tribunal Member made it clear to the applicant that the hearing was his opportunity to put any evidence and arguments to the Tribunal in support of his protection claims based on his asserted religious persecution in China.

7. I do not accept this submission.  In my view, the Tribunal's reply to the applicant's question about providing information about what happened to his son, namely: "No, because your son is not part of your application for refugee status" clearly foreclosed any further discussion of the son at the hearing.  It is no answer that later in the hearing the Tribunal asked the applicant whether he wished to put forward any further evidence and whether he wanted more time to do so.

8. The Tribunal's stated reason for denying the applicant the opportunity to give evidence and to make submissions regarding his son was that he was not part of the applicant's application for refugee status.  Mr Gormly submits, however, that even though the son was not an applicant, his alleged religious persecution was nevertheless relevant to the application as it may have provided evidence that religious persecution, affecting the applicant as well as the son, had taken place after 1993.  He submits in this regard that:

   … the reasoning is relevant accepting that certainly nothing has happened since '93.  Now, that's where the son's claims are relevant because, as I said, the son is a member of the same church, it's a small church in a small village and there is quite specific claims about the persecution by the Chinese government …  So, the submission is that, because of that, the experience of the son is an integer of the applicant's claim that he fears persecution on return and it goes to the well-foundedness of the fear.  It's not simply the subjective fears of the applicant but the experience of the son as an objective factor which has not been considered (Court transcript, p 11).

9. In response, the first respondent submits that:

   The Tribunal’s finding that the applicant was free to practise Christianity in the area where he resided in China was a finding based on the country information and on the finding the applicant had in fact practised his religion freely since 1993. The Tribunal put these matters to the applicant both prior to the exchange on page 17 regarding the applicant’s son (see, for example, at page 7), and after the exchange (see, for example, at page 27). At no time during the oral hearing did the applicant claim that his son’s experience was relevant to the issue of the applicant’s ability to practise religion freely in China … he was never denied an opportunity at the hearing to make such a claim. The hearing was conducted fairly and according to law.

10. I accept the submission by the applicant over that of the first respondent on these matters.  I consider that any claims in relation to the son’s alleged religious persecution in China that the applicant may have made, if given the opportunity by the Tribunal, would have been relevant to the determinative issues in this case, namely, the local authorities' tolerance of the applicant’s house church after 1993, the ability of the applicant to practise religion freely during the period after 1993 and whether the applicant’s alleged fears of religious persecution if he returned to China were well-founded.

11. In regard to the submission by the first respondent, I have read the extracts from the Tribunal hearing at pages 7 and 27.  I do not consider that in either case the applicant made any such concession that he was able freely to practise his religion in China after 1993.  I further consider, contrary to the first respondent’s submission, that by foreclosing discussion of the son at the hearing, the Tribunal denied the applicant the opportunity to provide evidence of his son’s experience of religious persecution in China, which evidence, depending upon its content, may have been relevant to the determinative issue of whether the applicant’s alleged fears of religious persecution if he returned to China were well-founded.

12. The first respondent further submits that:

    the factual finding by the Tribunal that the applicant had practised his religion freely since 1993 was a separate and independent basis for the Tribunal’s decision to affirm the delegate’s decision. It was an independent basis for the conclusion that the applicant did not have a well-founded fear of persecution.  That finding was not affected by any jurisdictional error.

13. I do not accept this submission.  Again, by denying the applicant the opportunity to speak about his son, the Tribunal foreclosed the possibility of the applicant providing evidence about his son's alleged experience of religious persecution in the period since 1993, which may have been relevant to the Tribunal's determination of whether the applicant had enjoyed religious freedom in China during that period.

14. The applicant submits in this regard that:

    If accepted [by the Tribunal], the contentions about the son’s persecution would have undermined the Tribunal’s findings on the tolerance of the local authorities for the applicant’s house church and the ability of the applicant to practise his religion freely.

    The contentions about the son’s experience provided an independent basis for the Tribunal to find that the applicant’s fears were well founded apart from the applicant’s own personal experience. Therefore the contentions were essential integers of the applicant’s claims.

15. I consider that the applicant’s submission on this point puts the case for the applicant too high.  The Tribunal was not bound to accept any claims that the applicant may have made regarding religious persecution of his son in China after 1993 and could have made a decision not to accept those claims.  Indeed, the applicant chose not to have his son give evidence at the Tribunal hearing or to call a witness to give evidence regarding the ability of the son to do so (CB 64). 

16. Nevertheless, I consider that the Tribunal’s failure to provide the applicant with the opportunity to present evidence concerning his son, which may have included claims concerning his son's religious persecution in China, denied the applicant the opportunity to give evidence and present arguments relating to the determinative issues under review, (as identified above), in breach of the requirements of s.425.

17. In reaching this conclusion, I have noted the observation of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [25] that:

    It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.

18. I have also noted the comment by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64 at [31] that:

    An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review.

19. I consider that the observations of Rares J in Aporo v Minister for Immigration & Citizenship [2008] FCA 102 at [30], (a case concerning judicial review of an AAT decision to cancel a Subclass TY444 visa on character grounds), are also directly relevant in the present context:

    On the evidence it may have been open to the tribunal to come to a view one way or the other on this question. It is not the function of the court to determine the merits of such an argument, rather it is for the court to ensure that the procedures required by law are followed. The principles of procedural fairness focus on procedures rather than outcomes. They focus on what a decision-maker must do in the course of deciding how a particular power must be exercised: Appellant VEAL of 2002 v MIMIA (2005) 225 CLR 88 at 96 [16] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.

20. As indicated above, it is not possible to determine whether the applicant would have given evidence at the Tribunal hearing concerning his son's religious persecution in China, nor is it possible to determine what relevance or weight the Tribunal might have given to any such evidence.  However, the denial by the Tribunal to afford the applicant that opportunity denied him the right to submit evidence which may have had an effect on the determinative issues in this case.

21. I therefore consider that the breach by the Tribunal of its statutory obligations under s.425 by not according the applicant procedural fairness, constitutes a jurisdictional error on its part.

22. Accordingly, for the reasons stated above, Ground 1 of the amended application is upheld.

Ground 2 of amended application

1. Ground 2 of the amended application states that:

   (2)The Tribunal failed to carry out its review function in that it did not take into account or consider claims made by the applicant in relation to the persecution of his son by the Chinese government.

   Particulars

   ·The applicant repeats the particulars in para. 1 above.

2. Section 414(1) of the Act states that:

   if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

   There is no dispute in this case that the applicant made a valid application to the Tribunal under s.412 of the Act (CB 81).

3. In Htun v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1802 at [42] Allsop J stated:

   The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend; (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

4. The Court has already determined under amended ground 1 above, that the applicant in his application for a protection visa claimed that his son had suffered discrimination or persecution on religious grounds in China and that the Tribunal at the hearing had denied him the opportunity to give evidence and present arguments relating to this matter, notwithstanding its potential relevance to the determinative issues in this case.

5. I therefore consider, applying the reasoning in Htun, that the Tribunal made a decision without giving full consideration to all the claims and, in so doing, failed to complete the exercise of jurisdiction embarked upon by it, as required by s.414.  The Tribunal thereby failed to consider an element or integer of the applicant’s claims which constitutes jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82].

6. Accordingly, Ground 2 of the amended application is upheld.

Whether relief should be refused: exercise of judicial discretion

1. The applicant having established the foundation for relief as a matter of law, the Court must now consider whether the circumstances of this case justify the refusal of relief in the exercise of the Court’s residual discretion, exercised judicially.

2. The High Court has provided some guidance on what circumstances may warrant the Court ultimately refusing relief.  In Abebe v Cth (1999) 197 CLR 510 at [113] the Court stated that:

   Discretionary factors which will militate against the grant of prerogative relief include situations where the relief will serve no useful purpose or where the breach had no effect on the decision in question.

3. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 McHugh J at [80] stated that:

   Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands - . Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.

4. Further, in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, as relevantly observed by Kirby J at [56] –[57], citing with approval the earlier remarks of the High Court in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82:

   In his reasons in Aala, McHugh J wrote to similar effect:

   “… once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because '[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'.”

   In my own reasons in Aala I indicated that the "public character of the legal duties" which the remedies were designed to uphold meant that "ordinarily, [relief] will issue where the preconditions are made out". I went on to acknowledge:

   "But circumstances will occasionally arise where it is appropriate to withhold the writ because a party has been slow to assert its rights, has been shown to have waived those rights, or seeks relief in trivial circumstances or for collateral motives, and where the issue of the writs would involve disproportionate inconvenience and injustice.”

5. Notwithstanding the Tribunal’s findings as to the “significant inconsistencies” in the applicant’s evidence and that he was not a witness of truth, (in particular in regard to the evolving nature of his claims to have been arrested 5 or 6 times since 1992 or 1993 and its finding that he had not had “any adverse encounters with the authorities regarding his religious beliefs for at least 14 years”), I do not consider that this is a case where the relief sought by the applicant would serve no useful purpose or where the breach of s.425 necessarily had no effect on the decision in question. In this sense, where the applicant had raised the religious persecution of his son in his original protection visa statement; where the applicant’s evidence at the Tribunal hearing about his son, and any submissions thereon, if he had been given the opportunity to present them, may have touched upon this critical 14 year period; and where this period was clearly identified by the Tribunal as critical in this case; I am satisfied that the breach of s.425 constituted a fundamental denial of procedural fairness on the part of the Tribunal.

6. I further do not consider that any other identifiable circumstance can be demonstrated which would warrant the refusal of relief in this case.  In particular, I do not consider that this is a case where remittal of the matter to the Tribunal would involve “disproportionate inconvenience and injustice”.  I do not therefore consider that this is one of those occasions where it is appropriate for the Court to exercise its discretion to withhold relief in the present case.

Conclusion

1. The decision of the Tribunal is affected by jurisdictional error.

2. The applicant is entitled to the relief claimed in the form of the constitutional writs.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate:  Duncan Maconachie

Date:  26 June 2008