SZMMS v Minister for Immigration - [2008] FMCA 1596

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMMS v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1596

MIGRATION – Review of decision of RRT – where jurisdictional error conceded – whether independent finding permitting court to exercise discretion not to grant constitutional writs.

Migration Act 1958, s.424

SZKTI v Minister for Immigration [2008] FCAFC 83
SZKCQ v Minister for Immigration [2008] FCAFC 199
SAAP v Minister for Immigration (2005) 228 CLR 294
SZBYR v Minister for Immigration (2007) 81 ALJR 1190
Re Refugee Review Tribunal; Ex parte: Aala (2000) 204 CLR 82
Bugdaycay v The Secretary of State for the Home Department [1986] UKHL 3

Applicant:

SZMMS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1756 of 2008

Judgment of:

Raphael FM

Hearing date:

20 November 2008

Date of last submission:

20 November 2008

Delivered at:

Sydney

Delivered on:

1 December 2008

REPRESENTATION

Counsel for the Applicant:

Ms A Seward

Solicitors for the Applicant:

Michaela Byers

Counsel for the Respondent:

Mr D Godwin

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

A writ of certiorari issue bringing the Tribunal’s decision into this Court to be quashed.
A writ of prohibition be directed to the First Respondent prohibiting the First Respondent from acting upon or giving effect to or proceeding further upon the decision.
A writ of mandamus be directed to the Second Respondent compelling it to redetermine the application for a protection visa according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1756 of 2008

SZMMS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China. He arrived in Australia on 22 October 2007. On 5 November 2007 he applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 1 February 2008 a delegate of the Minister refused to grant the protection visa. On 12 February 2008 the applicant applied to the Refugee Review Tribunal to review the delegate’s decision. The applicant attended an interview with the Tribunal on 2 April 2008 together with a witness. On 22 May 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 10 June.
The applicant’s ground for claiming that he was a person to whom Australian owed protection obligations was the convention ground of political/imputed political opinion/religion as an adherent of the Falun Gong movement. He claimed that he had been introduced to the movement by his grandmother in July 2003. He claimed that his initial interest in the movement was because of its ability to assist him to overcome sporting injuries. On 18 May 2007 two police officers entered his grandmother’s home whilst they were practising the Falun Gong exercises and took them to the district police station where he was beaten. He was forced to write a letter of apology and agree not to further practice. His grandmother refused to sign a similar guarantee and continued under police observation. The applicant claimed that he remained under surveillance by the police and that twice the police came to his house and told his parents that if he continued to practice his punishment would be severe. Nonetheless he continued to practice in private.
The applicant had a job as a sales manager with a sports goods company. In July 2007 the company organised for him to take a business trip to Japan. He was only there for a few days and whilst there did not seek protection. Upon his return, in discussions with his parents, he decided to seek protection in Australia and set about obtaining a visa with the assistance of his sister. Since he has been in Australia he has maintained his association with the Falun Gong movement practising and taking part in demonstrations.
The applicant brought a witness with him to the Tribunal hearing and also statements from three other witnesses [CB 91], [CB 93] and [CB 95]. At the time of his PVA and meeting with DIMIA he had produced two other statements [CB 46] and [CB 48]. The witness statements confirm the applicant’s adherence to Falun Gong and his continued practice.
The Tribunal questioned the applicant upon his claims and raised concerns that it had with him about his description of his arrest. The Tribunal made it plain to the applicant that it did not understand how the PSB knew that his grandmother and he were practising and more particularly why they continued practising when his grandmother heard the knock on the door which heralded the arrival of the police. The applicant provided an explanation that the police were accompanied by the local social security person who his grandmother knew and as that person had come before they did not stop practising. As his grandmother had got up to answer the door, and as the room in which they were practising was only a couple of steps from the door, it is unlikely that the applicant was actually caught undertaking an exercise but he says that there were pamphlets and videos of Falun Gong in the room which the police found.
The Tribunal also questioned the applicant as to why he had not sought asylum when he was in Japan and why he had only come to the idea of leaving the country to seek asylum elsewhere after he had returned. The applicant explained that he had been sent to Japan by his company and did not want to embarrass his manager, in any event he was only there for a very short time and it had not occurred to him that he could seek asylum there. The Tribunal questioned the applicant about obtaining his passport. At this stage some confusion arose:
[T17 - 18]
“TM:   Why did you come to Australia?
A:I came back from Japan and that gave my parents idea and we started planning going overseas, and my sister got a friend and we started on the plan.
TM:     And what visa did you get?
A:I don’t know what kind of visa it was. I was given the document two days before I left, and the passport given to me when I was in Sinjin(?) and the application was done by the agent.
TM:     So the agent got you the passport too?
A:     The passport, the passport, I used this passport when I went to Japan.
TM:     And who got the passport?
A:     The passport, I paid money to the agent and then got the visa.
TM:     But who got the passport?
A:The agent got the passport and I was told to go to Sinjin and I went to Sinin and I was given the passport.
TM:     Did you pay money for the passport?
A:I think my sister had given the money to the agent already before I went to Sinjin. I went to Sinjin just to get the passport.
TM:But you said initially to me – now you say your sister got the passport. Before you said to me that the company arranged the passport for you to go to Japan?
A:I don’t really understand your question but I got the passport with me. For the first visa it was done by the company. For the visa for Australia it was through an agent, my sister got the agent to do it for me.
TM:You just said the agent got the passport through money paid for by your sister. Whereas earlier at the beginning of the hearing I asked you – you said the company obtained the passport for your trip to Japan.
A:Yes, the company helped me in getting the passport. They also help with the visa for Japan.
TM:     So you didn’t have to pay money through your sister to get the passport?
A:Sorry, it was my sister who took my passport and gave the passport to the agent for agent to apply for the visa.
TM:     Okay. So the company got your passport?
A:     Yes.
TM:     So that was legally obtained?
A:     Yes it’s legal.
[T37]
TM:My other concern is that you said to the Department that your sister – no, sorry, my other concern is that you both said to me that your sister and the company obtained your passport.
A:Yes. The application for the passport and the visa to Japan was done by the company and the visa to come to Australia was done by the agent through my sister paid money to the agent.”
TM:At the Department, in contrast to what you told me, you told the Department that your passport, that your sister paid money to obtain the passport.
A:Maybe I was confused, I was confused at the time. I thought, I was confused between the passport and visa. I thought the passport was the visa. So I didn’t make a distinguish between the passport and the visa. Even today, today when you asked me in the beginning I was not clear about that as well.”
The Tribunal’s reaction to this confusion was contained in its findings and reasons at [91] of [CB 135]:
“The applicant’s evidence was also internally inconsistent about how he obtained his passport. Initially he said his passport had been obtained by his company to travel to Japan, then subsequently he said his sister had arranged his passport through an agent. Although he corrected himself once the inconsistency was put to him and confirmed his passport was obtained legally, the Tribunal believes this inconsistency arises as the applicant is not a witness of truth. It does not accept his evidence that he did not understand the question. It cumulatively adds to the Tribunal’s finding on the applicant’s credibility.”
The Tribunal also expressed concern that the applicant had not applied for asylum in Japan.
In the course of the hearing the Tribunal questioned the applicant about his practice of Falun Gong in Australia. The applicant told that he practised at Campsie. He was questioned in some detail about the time that the Campsie practice session started. The applicant said they started at 5.50a.m. The Tribunal insisted that the website indicated that the practice started at 6.30a.m. The Tribunal questioned the applicant as to how he could have started at that time when it was still dark and he had said that it was daylight. The Tribunal also questioned the applicant about his involvement in other Falun Gong activities in Australia.
Although the applicant had called his own witness and had produced three statements from other persons who knew him during the course of the Tribunal hearing the Tribunal determined to telephone one of the persons who had provided an earlier witness statement to the delegate. The applicant had been asked why that person had not given another statement and the applicant said that it was because she had moved away from the area and he had lost contact with her. The witness was not sworn. The transcript of the Tribunal’s discussion with her is set out below:
[T28 - T29]:
TM to Int: Can you say that it’s Gabrielle Cullen of the Immigration Review Tribunal.
Int:Yes.
(Phone call is answered by Chinese lady)
TM:Where do you practice Falun Gong.
Wit:Before I practice at Campsie.
TM:     When did you move?
Wit:     I didn’t move.
TM:     When did you last go there?
Wit:     I go there every week.
TM:     When did you last see (applicant’s name) there?
Wit:     Yes because we are fellow practitioners.
TM:     When did you last see him there?
Wit:I cannot remember the last time I met him but every week once or twice we’ll meet in the park.
TM:     So last week this was the same?
Wit:Yes because he’s a real practitioner. When I went there I can always meet him.
TM:     What time does practice begin at Campsie?
Wit:Because I’m doing cleaning in the morning and about between six to seven when I go there I see him there.
TM:     So what time does the practice start in Campsie?
Wit:About six-thirty, six-thirty. In the winter we practice normally from six-thirty to seven-thirty and now to eight-thirty.
TM:     What about in summer?
Wit:     About six-thirty.
TM:     So when did you last see him?
Wit:Because I’m working now, I have got work every day. Whenever I go to practice at Campsie I can always see him there.
TM:     So when did you last go to Campsie?
Wit:     I went there the Monday, the Tuesday.
TM:     So this Monday and Tuesday?
Wit:     I went there six o’clock because I had to go to work.
TM:     So did you see him on Monday and Tuesday?
Wit:     I see.
TM:     So this was, did you see him yesterday and the day before?
Wit:     Yesterday and the day before because I had to hurry to work.
TM:     So you didn’t see him?
Wit:     I have seen him.
TM:     Thank you very much.”
After the hearing the Tribunal twice telephoned the organiser of the Campsie practice site, a Ms Wang, and sought additional information from her about the times of practice, whether there was a session on a Wednesday night and whether the applicant was a Falun Gong practitioner. The Tribunal deals with those telephone conversations at [77] of [CB 130]:
“The Tribunal contacted Mrs Wang from the Campsie practice site who confirmed practise was held at 5.50am and finished by 8.00am. She said there are only a few people at the site and most of the time she is there by herself. She could not confirm whether the applicant practised at the site or not.”
The Tribunal further sent an email to a Mr Qi Wen, the editor of a Falun Gong newspaper [CB 108] requesting contact details for Mrs Wang and also asking whether the Campsie practice site began at 6.30a.m. and goes to 8.30a.m.
The respondent accepts that these contacts raise a concern for possible breaches of s.424(3) and s.424 of the Migration Act 1958 (the “Act”):
“[25] The Tribunal makes no express reference in its reasons to placing any reliance upon the information which Ms Wang provided. Nevertheless it is conceded that, on the current state of Full Federal Court authority, the failure to comply with s 424(3) is jurisdictional whether or not the information obtained is relied upon by the Tribunal.
[26] The second issue in respect of s 424 arises because the Tribunal telephoned a witness during the hearing. The witness had provided a written statement in support of the applicant. The Tribunal obtained the consent of the applicant in the course of the hearing for the Tribunal to ring the witness during the hearing. From the transcript it appears that no oath or affirmation was administered. The witness’s evidence therefore may not have been obtained under s 427 of the Act and s 424 may have been the source of power. If so, it might be that the evidence was obtained in breach of s 424(3) – see SZKJT v MIC [2008] FMCA 876 at 50-59, of SZGBI v MIC [2008] FCA 599 at [32].
[27] The third issue under s 424 arises because the Tribunal emailed a request to Qi Wen, the editor of a Falun Gong newspaper (CB 108). The request was for the phone number for the organiser of the Campsie practice site and was thus a request for additional information. The current state of authority suggests that no jurisdictional error occurs when such a request is made in writing by the Tribunal to a third party (SZIAR v MIC [2008] FMCA 1348 at [30]-[40]. The same can be said for email requests made to the Department and the Guangzhou Consulate in respect of the applicant’s short term business visa file (CB 106 and 109).
[28] In short, it is conceded that, on the current state of Full Federal Court authority, there has been at least one breach of s 424 which was jurisdictional.”
The applicant applauds the concession, notes that breaches have occurred and in addition argues that the credibility finding arising out of the passport question constituted the taking by the Tribunal into account of incorrect and irrelevant evidence which was part of the cumulative impact referred to at [94] of [CB 136] which formed the basis for a finding that the Tribunal did not believe that the applicant was a credible witness. The Tribunal having taking into account irrelevant material fell into jurisdictional error.
The respondent argues that I should exercise my discretion not to provide the applicant with the constitutional writs he seeks because the Tribunal had found an entirely independent reason for concluding that the applicant was not entitled to Australia’s protection. This was that it did not accept that he had a genuine well founded fear:
“[95] The Tribunal also does not accept that the applicant’s fear of return to China in the reasonably foreseeable future for being a Falun Gong practitioner is genuine. The applicant claimed in his statement that the events that led him to leave China were his detention in May 2007, and seeing his grandmother after she had been detained. He claimed in his statement he became distressed and frightened by these events. He claimed at hearing it was his parents who decided he should leave China after he returned from China. By voluntary returning to China after his visit to Japan in July 2007, and it not even crossing his mind to seek protection elsewhere, indicates to the Tribunal that as at July 2007 the applicant did not hold a genuine fear of persecution. It is implausible to the Tribunal that he would not fear return to China and think of seeking protection elsewhere after he and his grandmother had been detained. At hearing when this concern was put to him he said in contrast he did not think of seeking protection elsewhere and that this was the idea of his parents to seek protection elsewhere. The Tribunal does not accept this reply as it is in contrast to his statement that he was frightened and distressed after his detention and that he now does not want to return for being a Falun Gong practitioner.”
The respondent argues that although the Full Courts in both SZKTI v Minister for Immigration [2008] FCAFC 83 and SZKCQ v Minister for Immigration [2008] FCAFC 199 equate a breach of s.424 with the significance of a breach of s.424A as explained by the High Court decision in SAAP v Minister for Immigration (2005) 228 CLR 294 the later decision of SZBYR v Minister for Immigration (2007) 81 ALJR 1190 is authority that not all breaches of s.424A would lead to a grant of relief. The respondent relies on [29] of their Honour’s decision:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[20], cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse"[21]. In this regard, the references that were made in the course of argument to the "unbundling" of a Tribunal's reasons into "impeachable" and "unimpeachable" parts were more likely to mislead than to assist. While there may well be cases in which a tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”
In his Judgment in SZBYR Kirby J at [56] referred to the reasons of McHugh J in Re Refugee Review Tribunal; Ex parte: Aala (2000) 204 CLR 82, a seminal case on the discretionary nature of constitutional writs.
[104] Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission[57] when it said that 'not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial'. Nevertheless, 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.”
Kirby J further opined at [59]:
“The result of Aala is that, whilst establishment of the preconditions for this form of relief will ordinarily entitle a party to the relief, there will always remain a residual discretion to be exercised judicially. Some of the considerations relevant to that decision have been identified. However, in the nature of discretionary remedies, much will depend on the facts and circumstances of the particular case.”
At [62] His Honour posed this question:
“Might any such failure have affected the correct disposal of the appellants’ application to the tribunal? If it might, the matter would not be suitable for dismissal in the exercise of a judicial discretion.”
before concluding that the fundamental reason for declining to grant protection to the applicants in SZBYR had nothing to do with the applicant’s testimony or the manner in which he put his claims but with the uncontestable fact that the persecution he suffered was not being suffered for a convention reason.
“Properly analysed, that was the “reason” and the only “reason” in this case for the Tribunal’s decision. It was sufficient. And if necessary required rejection of the appellant’s claims. It could not possibly have been affected by anything that might have been said by either of the appellants in response to written copies of documentation addressed only to preliminary, collateral and discursive matters as set forth in the Tribunal’s reasons.” [86]

I am of the view that the situation in the instant case is different to that considered in SZBYR. In this case the Tribunal came to a finding of implausibility about the applicant’s not making a claim for asylum in Japan (a country whose refugee processing procedures had been noted by the delegate as being the subject of criticism) [CB 67]. The applicant had provided an explanation. The travel to Japan had been arranged by his company. He did not want to place his manager into trouble. He was only in Japan for a very short period of time. These explanations were not accepted. But it cannot be doubted that a more general finding of credibility on the part of the applicant could well have gone some way to negating this effect. Thus I believe any jurisdictional error that affects the Tribunal’s credibility findings would have a flow on effect to what appears at first sight to be an independent ground. I am not satisfied that this “independent” ground is not one affected or influenced by previous credibility findings. In those circumstances I believe that the court is constrained to:
“Subject [this] administrative decision to the most rigorous examination to ensure that it is in no way flawed according to the gravity of the issue which the decision determines.” Bugdaycay v The Secretary of State for the Home Department [1986] UKHL 3 per Lord Bridge.”
As I cannot be satisfied that the decision is not flawed as a result of the conceded jurisdictional errors I would propose to grant the constitutional writs sought. For the sake of completeness I would indicate that had it been necessary to give my views in relation to the submission that incorrect and irrelevant evidence was taken into account when the Tribunal made the adverse credit finding about the applicant from the discussion about obtaining the visa and/or the passport, I would not have found a jurisdictional error. The tendency to dress up intra jurisdictional misunderstandings as extra jurisdictional errors puts the court in danger of providing impermissible merits review. In this case the Tribunal noted that the applicant had corrected itself once the alleged inconsistency had been put to him which allows for the possibility of a Tribunal making the credibility findings that it did. Credibility findings are rarely made in isolation and this one may well have been influenced by the general attitude of the Tribunal towards this particular applicant. That is why the court must be so reluctant to exercise its discretion to pass over conceded jurisdictional errors.
I will provide the applicant with the constitutional writs sought in his application and order that the First Respondent pay the Applicant’s costs which I assess in the sum of $5,000.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 1 December 2008