SZMEH v Minister for Immigration

[2008] FMCA 1302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMEH v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1302

MIGRATION – Review of decision of Refugee Review Tribunal – Protection (Class XA) visa – jurisdictional error – breach of s.425 of the Act – determinative issue not identified by the delegate or the Tribunal – applicant denied opportunity to give evidence and present arguments on determinative issue – failure to accord procedural fairness – 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, 476

SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152
Minister for Immigration & Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 (FC)
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 (HCA)
SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64
Aporo v Minister for Immigration & Citizenship [2008] FCA 102
Appellant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88
Abebe v Commonwealth (1999) 197 CLR 510
SAAP v Minister for Immigration and Multicultural & Indigenous Affairs [2005] HCA 24
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Re Refugee Tribunal; Ex parte Aala [2000] HCA 57

Applicant: SZMEH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 997 of 2008

Judgment of: Orchiston FM

Hearing date: 19 August 2008

Date of Last Submission: 19 August 2008

Delivered at: Sydney

Delivered on: 16 September 2008

REPRESENTATION

Counsel for the Applicant: Mr J. T. Gormly

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 21 April 2008 is upheld.

2. A writ of certiorari, directed to the Refugee Review Tribunal, shall issue quashing the decision of the Tribunal signed on 17 March 2008 and handed down on 27 March 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 2 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 22 November 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 pay the Applicant's costs fixed in the sum of $5,000 payable within twenty eight (28) days of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 997 of 2008

SZMEH

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 27 March 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.

2. The applicant applies for an order that the respondent show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Act in respect of the Tribunal decision.

Background

1. The applicant was born on 11 October 1939.  He claims to be a national of China and of Han ethnicity.

2. The applicant last arrived in Australia on 26 October 2006 on a Chinese passport issued in his own name.

3. The applicant lodged an application for a protection visa on 14 August 2007 on the basis that he is a Falun Gong practitioner and fears persecution in China.

4. On 22 October 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 (see Legislative framework).

5. On 22 November 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 17 December 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 29 January 2008 to give oral evidence and present arguments. The applicant appeared before the Tribunal on that occasion.

2. On 17 March 2008 the Tribunal affirmed the delegate’s decision. On

   
   27 March 2008

   a copy of the Tribunal decision was sent to the applicant.

The Tribunal’s findings and reasons (Court Book (CB) 178-188)

1. The Tribunal found that the applicant had:

   lied about his claims and is not a credible witness (CB 185).

2. In reaching this conclusion, the Tribunal set out, at length, its summary of what it considered were inconsistencies between, on the one hand, the applicant’s claims regarding his practice of Falun Gong in China and his alleged persecution for such practice, and, on the other hand, his evidence (which it accepted) regarding his membership of the Chinese Communist Party (CCP) and his employment history at Tianjin University and its associated wireless factory, until 2005.  The Tribunal then stated that:

   [It] has not come to its conclusions lightly but is satisfied that the inconsistency of the applicant's claims in regard to his having been a Falun Gong practitioner in China, and as such having been forced to write a renunciation letter in November 1999, with the positions he subsequently held in the CCP and at the University and its associated wireless factory until 2005, is so great that it finds these claims to be totally implausible and the Tribunal does not accept them (CB 183).

3. In regard to the evidence of the applicant’s daughter in support of the applicant’s claims that he was a Falun Gong practitioner in China, the Tribunal stated that:

   [it] does not accept the evidence of the applicant’s daughter provided at the hearing as being either reliable or credible, and accordingly it attaches no weight to it (CB 183).

4. In regard to the applicant’s Falun Gong activities in Australia, the Tribunal stated that:

   Given [the Tribunal’s] earlier findings, including that the Tribunal does not accept that the applicant was a Falun Gong practitioner in China, was forced to renounce Falun Gong in November 1999, and then was under intense surveillance, the Tribunal has not been able to satisfy itself that the reason why the applicant has been involved in Falun activities in Australia was for any other reason other than to enhance his claim for a protection visa (CB 185).

5. The Tribunal concluded that:

   In short and given all the above and having considered all the claims by the applicant, both individually and collectively, the Tribunal is satisfied there is not a real chance that the applicant would be subject to serious harm amounting to persecution for a Convention reason if he returns to China, either now or in the foreseeable future, and finds that he is not a refugee (CB 188).

The proceedings before this Court

1. The applicant filed the application in this Court on 21 April 2008 setting out 1 ground of review of the Tribunal’s decision.

2. Mr Gormly of counsel appeared for the applicant at the hearing on

   
   19 August 2008

   . Mr Reilly of counsel appeared for the first respondent.

Grounds of application

Ground 1 of the application

1. Ground 1 of the application states:

   That the decision of the Tribunal was affected by jurisdictional error in that the Tribunal did not comply with s.425 of the Migration Act 1958 in that it did not accord the applicant procedural fairness because it did not give the applicant a sufficient opportunity to give evidence or make submissions on determinative issues.

   Particulars:

   (a)In his application for a protection visa the applicant claimed and the delegate did not dispute that the applicant was a member of the Communist Party and that he was a senior engineer and an associate professor in Tianjin University until he retired in 2000, after which he continued to work for the University until the winter of 2005.

   (b)The delegate did not accept any of the applicant's claims in relation to his involvement with Falun Gong or his claims of persecution but not on the basis of the applicant's employment history or his membership of the Communist Party.

   (c)In its decision the Tribunal accepted the applicant's claims of his employment history and membership of the Communist Party.  However the Tribunal found these “core claims” to be inconsistent with the applicant's claimed involvement in Falun Gong and his claims of persecution.  On the basis of this inconsistency the Tribunal rejected the applicant's claims of involvement in Falun Gong and persecution.

   (d)At the hearing the Tribunal did not warn or say anything to the applicant to indicate that it regarded his membership of the Communist Party or his position at the University to be inconsistent with the applicant's claims of involvement in Falun Gong or persecution.

2. The applicant, in effect, is asserting that the Tribunal has breached its statutory obligations under s.425 of the Act. Section 425(1) requires the Tribunal to:

   invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

3. The Tribunal must therefore identify the determinative issues arising in the case and give the applicant sufficient opportunity to give evidence and present arguments relating to those issues before reaching its decision: SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 at [33]–[48].

4. This ground therefore turns on whether the Tribunal’s finding of inconsistency between the applicant’s evidence regarding his membership of the CCP and his employment history on the one hand, and his alleged persecution for his practice of Falun Gong in China on the other, raised a determinative issue in relation to the decision under review; if so, whether such issue was identified to the applicant by the delegate or by the Tribunal; and if so, whether the applicant was given sufficient opportunity by the Tribunal to give evidence and present arguments relating to that issue.

Whether a determinative issue

1. In its Findings and Reasons, the Tribunal concluded that there was an inconsistency between the applicant’s evidence on these two matters:

   These claims [concerning his persecution in China for his practice of Falun Gong] are, however, inconsistent with other core claims made by the applicant that are accepted by the Tribunal.  For example, the applicant claims and the Tribunal accepts that he became a member of the CCP many years ago, and remained so until he came to Australia when he renounced his party membership in a statement made in a Chinese newspaper.  The applicant also claims, and the Tribunal accepts, that he was not just a CCP member but also was a ranked member in the CCP who had more than 10 party members working for him and his role was to promote the party.  And in his statutory declaration, the applicant claims that he was a capable staff member in his work unit and his leaders found him to be very useful.  The Tribunal finds that these claims, about which he had no reason to lie, are totally at odds with his claims that he was known to have been a Falun Gong practitioner who, notwithstanding the meeting in his workplace, during which he was abolished, and having made a pledge shortly after the crack down on Falun Gong to renounce it, he was still regarded as being under such suspicion that he was put on a PSB blacklist and was subject to intense monitoring.  The Tribunal is satisfied that if he was put on a PSB blacklist of any sort, and was subject to the surveillance measures he claims, then they would not have continued to allow him to hold a position in the CCP [emphases added].

   Nor does the applicant claim that his career was in any way restricted following his having been identified as a Falun Gong practitioner who had been admonished in the workplace and had made a pledge to renounce Falun Gong .  On the contrary, the Tribunal accepts that he went on to hold a very important position until his retirement.  Further, the applicant does not claim that his teaching and other activities were limited or curtailed in any way because of his earlier involvement with Falun Gong and the continuing suspicion that the authorities had about him, which he claims was of such a level that it warranted the extensive surveillance measures he claims were employed against him.  Again, as has just been noted, the applicant claims on the contrary that he was highly regarded by the leaders in his work unit.

   Nor does he claim that his retirement was prematurely brought forward for this or any other reason, or that other strictures were imposed upon him because of his past Falun Gong association and the continuing suspicion that he claims he was under sufficient to justify the deployment of significant State resources to, for example, visit his home on a number of occasions, attempt to enlist his wife to act as an informer against him, and to maintain ongoing monitoring of his telephone and Internet access.  Rather, the Tribunal accepts the applicant’s claim made at the hearing that he reached the normal retirement age for men in China, at which point he was subject to compulsory retirement (CB 179).

2. The Tribunal also relevantly found that:

   The Tribunal does not accept that this high regard and favourable treatment of him in his career by both the party and his employer is consistent with that of a person in China who was a known Falun Gong practitioner and who had been admonished in his workplace by the work unit party secretary and, notwithstanding his claim to having renounced his involvement with Falun Gong, was still regarded as being of such a risk and under such suspicion that he warranted the intense ongoing surveillance and monitoring that he claims (CB 179-180) [emphasis added] …

3. The Tribunal reached the following conclusion on this issue:

   The Tribunal has not come to its conclusions lightly but is satisfied that the inconsistency of the applicant's claims in regard to his having been a Falun Gong practitioner in China, and as such having been forced to write a renunciation letter in November 1999, with the positions he subsequently held in the CCP and at the university and its associated wireless factory until 2005, is so great that it finds these claims to be totally implausible and the Tribunal does not accept them [emphases added] (CB 183).

4. The first respondent submits that the Tribunal’s conclusion that there was an inconsistency between these two matters was just part of the Tribunal’s reasoning process.  It submits in this regard that:

   … s.425 does not require the Tribunal to disclose how it is minded to decide or give a running commentary on the Applicant’s evidence: SZBEL v MIMA (2006) 228 CLR 152 at [48], or to identify the significance of its questions: MIAC v Applicant A125 of 2003 (2007) 163 FCR 285 (FC) at [88-89].  Nor does procedural fairness require the Tribunal to set out every detail of its ultimate reasoning for the Applicant’s consideration: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 (HCA) at [54].

5. I note, however, that in SZBEL at [47]- [48] the High Court observed that while procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given, nevertheless:

   where …  there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

6. The applicant argues that what the Tribunal perceived in this case as an inconsistency on these two matters, was not simply part of the Tribunal’s reasoning process, but constituted a determinative issue in the SZBEL sense.  Mr Gormly submits on this basis that:

   The pivotal nature of it is born out in the language that is used by the Tribunal, that the claims of membership of the Communist Party and employment history were “totally at odds” with his persecution … and rendered the claims of persecution “totally implausible” (Court transcript, 19/08/08, at p 6).

7. I accept this submission. I consider that whether, in fact, there was such an inconsistency between, on the one hand, the evidence of the applicant regarding his past membership of the CCP and his work history, and, on the other hand, the evidence he provided regarding his involvement with Falun Gong in China and his persecution in China in consequence of that involvement, was not simply a matter of the Tribunal’s reasoning process. Rather, the existence of such an inconsistency constituted a central issue upon which the Tribunal rejected the applicant's claims for a protection visa. As stated above, the Tribunal reached the conclusion that “the inconsistency … is so great that it finds these claims to be totally implausible and the Tribunal does not accept them: (CB 183).  On this basis, it clearly was a dispositive issue in this case.

Whether applicant put on notice of the issue from the delegate’s decision

1. In determining whether the applicant was put on notice from the delegate’s decision of this determinative issue, the High Court in SZBEL at [47] makes the following pertinent remarks:

   there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.

2. On this basis, the first respondent submits that “given the delegate’s comprehensive disbelief of the Applicant, this was a case where everything [the applicant] said was in issue.”

3. I do not accept this submission.  I consider that a fair reading of the delegate’s reasons for rejecting the application for a protection visa (CB 104-107) does not support such a proposition.  Rather, I accept the following submission by the applicant on this matter:

   In its reasons for its decision the Delegate did not dispute the applicant’s employment history or that he was a member of the CCP. These matters had been made known to the Delegate in the original application (CB 18-19), its supporting Statutory Declaration (CB 37-39) and Form 80 Character Assessment Particulars (CB 48). The Delegate did not rely on or mention these matters in her reasons for coming to a decision.

1. I thus consider that this is not a case where the applicant was on notice of the issue from the delegate’s decision.

Whether the Tribunal identified the issue to the applicant

1. Whilst the Tribunal asked the applicant a series of questions regarding his membership of the CCP and his employment history (Tribunal transcript, pp 10-11), it at no stage identified to the applicant that it regarded his membership or positions in the CCP or his position at the University as being inconsistent with his claims of involvement in Falun Gong or his alleged persecution for such practice in China. The first respondent concedes as much (Court transcript 19 /08/2008 at p 12).

2. Following the Tribunal hearing, the applicant submitted a second Statutory Declaration which addressed a range of matters raised by the Tribunal (CB 156-158). In this regard I accept the submission by the applicant that:

   The second Statutory Declaration, like the applicant’s earlier Submissions (CB 123-124), showed the applicant and his adviser were not aware or “on notice” of the significance the Tribunal would attach to the applicant’s employment history and membership of the CCP.

3. In these circumstances, I consider that there is no evidence that this determinative issue was identified or drawn to the attention of the applicant by the Tribunal. 

4. I therefore consider that the Tribunal, without giving the applicant any notice or opportunity to respond thereto, concluded that there was a fundamental inconsistency between the applicant’s evidence regarding his membership of the CCP and his employment history, and his alleged persecution for his practice of Falun Gong in China.  The applicant was thus denied the opportunity to give evidence and present arguments relating to this determinative issue arising in relation to the decision under review. 

5. In reaching this conclusion, I have taken into consideration the observations by the High Court in SZBEL 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.

6. I have also taken into consideration the remarks by the High Court in SZFDE v Minister for Immigration & 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.

7. 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.

8. As indicated from the above authorities, it is not relevant to determine whether the applicant in the present case would have been able to provide an explanation as to how he could have maintained his employment and his position in the CCP, while at the same time being persecuted for his alleged involvement in Falun Gong.  Rather, what is relevant in this context, is the failure by the Tribunal to afford the applicant the opportunity to submit evidence and present arguments on that determinative issue.

9. I consider therefore that the Tribunal has breached its statutory obligation under s.425(1) of the Act in this case. I am satisfied that the applicant was not accorded procedural fairness by the Tribunal in accordance with the statutory regime, which constitutes jurisdictional error on its part.

10. Accordingly, for the reasons stated above, Ground 1 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 Commonwealth (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 & Multicultural & 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 & 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. 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. The issue of whether there was an inexplicable inconsistency between the applicant’s work history and membership of the CCP, on the one hand, and his claims of persecution for the practice of Falun Gong, on the other, was clearly a central and determinative issue in this case.

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 fifty-four (54) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate:  Duncan Maconachie

Date:  16 September 2008