SZMSC v Minister for Immigration

[2009] FMCA 413

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSC v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 413

MIGRATION – Application to review decision of Refugee Review Tribunal – whether a letter seeking Ministerial intervention after the date of the delegate’s decision is information given during the process that led to the decision under review within s.424A(3)(ba) of the Migration Act – inconsistencies and omissions as “information” – whether requirements of s.424AA met – interaction of ss.424AA and 424A.

Migration Act 1958 (Cth), ss.66, 91R, 417, 424AA, 424A, 494B

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 and Another (2006) 231 CLR 1
NBKS v Minister for Immigration and Multicultural and Indigenous Affairs and Another 156 FCR 205
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZCNP v Minister for Immigration and Multicultural Affairs [2006] FCA 1140
SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214
SZEWL v Minister for Immigration and Citizenship [2009] FCA 209
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236
SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721
SZMCD v Ministerfor Immigration and Citizenship [2009] FCAFC 46
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
SZMLB v Minister for Immigration and Citizenship [2008] FCA 1921
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276

Applicant: SZMSC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2227 of 2008

Judgment of: Barnes FM

Hearing date: 22 April 2009

Delivered at: Sydney

Delivered on: 7 May 2009

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr J Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2227 of 2008

SZMSC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal signed on 28 May 2008 and handed down on 19 June 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the People's Republic of China, who arrived in Australia in 2001 and applied for a protection visa.  In her protection visa application she claimed to have a well-founded fear of persecution on the basis that she was a Falun Gong practitioner.  She was invited to attend a Departmental interview.  She did not do so.  Her application was refused by the delegate on 14 November 2001.  

3. On 8 April 2002 the applicant wrote to the then Minister for Immigration seeking Ministerial intervention.  She claimed to be a Falun Gong practitioner and to fear persecution on that basis.  She claimed that the migration agent who had assisted her with her protection visa application had not informed her of the results of that application, that she had subsequently consulted another migration agent and had then discovered that her application had been refused in 2001.

4. By an undated letter in reply the then Minister for Citizenship and Multicultural Affairs, on behalf of the Minister for Immigration and Multicultural and Indigenous Affairs, advised the applicant that as she had not sought review of the decision to refuse her protection visa application the Minister for Immigration had no power to consider exercising his power under s.417 of the Migration Act 1958 (Cth) to substitute a more favourable decision for a decision of the Refugee Review Tribunal. There is no evidence before the Court as to the date of this response.

5. On 27 February 2008 the applicant sought review of the delegate’s decision by the Tribunal.  She provided supporting documentary material, including a copy of pages from her passport and letters of support referring to her baptism at a Chinese Presbyterian Church in Sydney in 2004 and her participation in Christian church activities from 2003 onwards.  

6. The Tribunal invited the applicant to attend a Tribunal hearing on 7 May 2008.  On 7 April 2008 the Tribunal received a completed response to hearing invitation form indicating that the applicant wanted the Tribunal to call a named witness with whom she had attended church in Villawood Detention Centre and after her release from detention.  She also provided the Tribunal with a written statement (and an English translation) dated 16 April 2008 in which she claimed that she had become a Christian in China, that she had escaped arrest when police raided the church premises and that she feared persecution because she had joined the church.   

7. After the hearing the applicant provided further letters of support from the minister and members of the congregation at a Chinese Congregational Church in Sydney, together with documents from a traditional Chinese medicine practitioner and a Chinese medicine and herb centre as to consultations in January and February 2008 in relation to dizziness, vertigo, a loss of memory and past Meniere’s disease.

Tribunal decision

1. In its reasons for decision the Tribunal found that despite the delay between the delegate's decision and the commencement of the review proceedings the applicant had made a valid application for review. There was no evidence on the Department's file to show that the notification of the delegate's decision was despatched within three working days of the date of the letter as required by s.66(1) and s.494B(4)(a) of the Migration Act.

2. The Tribunal set out in detail the claims made by the applicant in support of her protection visa application and in the letter to the Minister and the claims made and supporting documents provided in connection with the review application.  The Tribunal summarised the evidence given at the hearing on 7 May 2008 at which the applicant elaborated on her claims to fear persecution as a Christian and stated that she had no connection with Falun Gong, did not know what was in the protection visa application and had no memory of the letter to the Minister. 

3. In its findings and reasons the Tribunal observed that in her protection visa application the applicant had stated that she was a Falun Gong practitioner, but in the review she indicated that she had no connection with Falun Gong whatsoever.  It outlined her claim that she became a Christian whilst living in Fujian province and that in October 1999, while she was at a family church gathering, the police had raided the premises and arrested people, but that because she and her husband were in the kitchen making cakes they were not arrested.  It recorded that at the hearing the applicant claimed that she became fearful and fled to Shaanxi province where she organised a passport and Australian visa, whereas in her written statement to the Tribunal she had claimed that she and her husband fled to Shaanxi province.  She also claimed that the authorities came to her home looking for her after she left and that she had continued her Christian practice in Australia. 

4. The Tribunal first addressed the issue of the applicant's identity and her claim that her date of birth had been changed in order to get a passport.  On this basis she had claimed at the hearing that the date of birth in her protection visa application, passport and Chinese ID card was not her real date of birth.  The Tribunal outlined the information about her date of birth that the applicant had provided at various times.  It observed that at the hearing the applicant had denied any knowledge of the claims made in her protection visa application concerning Falun Gong and any knowledge of the subsequent letter to the Minister.  The Tribunal accepted that at least one of the applicant’s agents was unreliable and may have concocted claims and that false claims were provided to the Department in 2001 and 2002, but had regard to the fact that the claim that her birth date was false was not raised until the hearing. 

5. In this respect the Tribunal had regard to the length of time the applicant had been in Australia, the fact that the Chinese ID card was provided to the Tribunal without comment and that in her statement dated 16 April 2008 the applicant had recited her name and the allegedly incorrect birth date.  The Tribunal did not accept that the applicant would have failed to mention such a significant claim about use of a different birth date in her written statement because she felt obliged to be consistent with falsely obtained Chinese documents.  The Tribunal did not accept that the birth date on the passport and ID card was false.  

6. The Tribunal then addressed the applicant's claim at the hearing that she had a poor memory because of a medical condition.  It considered the documents she provided after the hearing showing consultations with Chinese herbal practitioners and an episode in January 2008 of dizziness and vertigo for 14 days and a loss of memory for some eight hours.  It accepted that she had suffered Meniere’s disease in the past.  The Tribunal found that this evidence concerned a short period of memory loss during one episode and did not suggest that such a memory loss had caused the applicant to suffer a loss of memory about significant events in the past.  It found that there was no compelling medical information to indicate that the applicant had an impaired memory which would impact on her ability to give evidence concerning significant events in China.  

7. While the Tribunal had concerns that the applicant sought to claim an ongoing medical condition in order to selectively excuse inconsistencies in her evidence, it had regard to her emotional response at the hearing when speaking of her deceased husband and her son in China and her evidence that she had previously consulted a psychologist in Australia.  It therefore considered her evidence in the light of her claimed medical history.

8. The Tribunal outlined the applicant's claims to be a Christian, including some inconsistencies as to dates which the Tribunal accepted involved honest mistake.  It recorded that the applicant claimed that she became interested in Christianity in 1999, but at the hearing had been unable to say what denomination her family church in China had been.  While she described attending mass on Sundays she said that they only read the bible, sang holy songs and paid respect to God and she did not claim to have taken communion or to have done anything else such as Catholic confession.  The Tribunal also described the applicant's claims about her continued practice of Christianity in Australia.

9. The Tribunal referred to the fact that the applicant's 2001 application for a protection visa and the 2002 letter to the Minister made no mention of Christianity, but claimed she was a Falun Gong practitioner.  It noted that at the hearing the applicant had denied any knowledge of the claims made in the application and the letter to the Minister.  It referred to other information before it dating her interest in Christianity from the time she was detained at the Villawood Detention Centre in 2003, including the evidence of the witness at the hearing who had spoken of first meeting the applicant at that time and of their mutual interest in Christianity and to the fact that at the hearing the applicant was not able to say what denomination her current church was and showed little knowledge of scripture, but had recited the Lord's Prayer. 

10. However, after considering the evidence before it the Tribunal found that the applicant was a Christian.  It made this finding based on evidence consisting of a letter from an elder of the Chinese Presbyterian Church about the applicant’s baptism on 4 April 2004, a letter from a minister advising of her participation in weekly evangelical meetings at Villawood in 2003 and her later attendance at church, the oral evidence of the witness and her statement which described their friendship since 2003, a supporting statement from another person, the fact that the applicant had some familiarity with scripture, albeit shallow, as well as references she provided which discussed her beliefs and attendance at church, largely from 2007.

11. The Tribunal then considered whether the applicant was a Christian in China.  At the hearing she claimed she had attended a family church for six months in 1999.  The Tribunal found that she gave only a vague description of such attendance and of how she practised her religion and that despite being given ample opportunity, she did not claim that she had any involvement in religion in Shaanxi province where she claimed to have fled.  It also noted that the supporting statements, references and the evidence of the witness only placed the applicant’s involvement in Christianity at best from 2003 and did not support her claims to have been a Christian in China. 

12. The Tribunal referred to the fact that the applicant’s protection visa application and letter to the Minister made no mention of her being a Christian, but that at the hearing she had "washed her hands of both and claimed she had no knowledge of the claims made in them".  The Tribunal observed that the application and subsequent forms on the Departmental file showed that the applicant had different people acting on her behalf and that a second agent appeared to have prepared the letter to the Minister on her behalf and maintained her claims concerning Falun Gong.  It indicated that the fact that two agents referred to Falun Gong claims on the applicant’s behalf may suggest that the fabrication was not solely of the agents’ making.  However it had regard to the fact that at the hearing the applicant denied any involvement with Falun Gong and accepted her evidence that she was never a Falun Gong practitioner. 

13. The Tribunal expressed concern “that had the applicant in fact had claims concerning her Christianity in China, those claims would have been used rather than entirely fictitious claims.  The information provided to the Department on her behalf does not support her claims to have been a Christian in China”.  However the Tribunal continued: "Nonetheless, the Tribunal accepts that fabricated claims have been given to the Department on her behalf and cannot discount that agents did misrepresent her claims without her knowledge.  The Tribunal cannot discount that the applicant did develop an interest in Christianity before she came to Australia as she claims.  The Tribunal therefore accepts she became a Christian in 1999".

14. However, for reasons which it gave, the Tribunal did not accept that the applicant was involved in an incident in October 1999 as she claimed.  It gave a number of reasons for concluding that the incident did not occur, including the fact that the applicant had said that she did not know what happened to fellow church members who had been arrested.  The Tribunal found that her claimed lack of interest in discovering the fate of arrested church members both before and after she took the "weighty step of fleeing to another province, suggests that in fact no church members had been arrested". 

15. The Tribunal also had regard to inconsistencies in the applicant’s claims about when she decided to leave China and get a passport.  It found that her explanation did not explain the significant change in her claims concerning when she was advised to seek a passport and when she decided to leave China.  It considered that the applicant’s evidence on this issue had changed during the hearing and that this was not a question of memory loss caused by a mental condition.  The Tribunal found that the applicant’s changed evidence at the hearing concerning such a significant issue raised concerns about the veracity of the claim and her credibility. 

16. The Tribunal also had regard to conflicting evidence about whether the applicant had a business interest in Shaanxi province.  It found that she had improvised and changed claims when her evidence was tested and that this was not a question of memory loss caused by a mental condition.  In addition it had regard to the fact that despite the incident and the fear of arrest that this was said to have caused the applicant and her husband, he and their child remained living in Fujian with a close relative while the applicant left the province.  This led it to conclude that the family had no fear of harm at the time.

17. The Tribunal then addressed the fact that in January 2001, some three months after the applicant’s passport was issued, she travelled to Hong Kong and Thailand and then returned to China.  It had regard to the applicant's explanation for this travel and her subsequent return to China, including her claim that the probability of detection was low because her age was different on the passport and she lived in another province.  However, having found that her passport showed her correct name and date of birth, the Tribunal found that the applicant's travel to Hong Kong and Thailand (where she did not seek to stay because she decided she did not want to live there) and her subsequent return to China reinforced its conclusion that she had no fear of persecution in China at the time.

18. The Tribunal considered the evidence cumulatively and found that the applicant was not a credible witness and had fabricated her story for the purposes of claiming refugee status.  It rejected all of her claims concerning her reasons for departing China. 

19. The Tribunal reiterated that it did not accept that the applicant had been or was a Falun Gong practitioner.  While it accepted she was a Christian in China and attended an underground church, it did not accept she was involved in an incident in October 1999 when she was at a family church gathering raided by the police.  Hence the Tribunal did not accept the reasons the applicant gave for obtaining her passport and Chinese ID card from Shaanxi province.  It found that the passport contained her correct name and birth date and rejected her claim that the authorities were searching for her and her husband.  It also found that she had no fear of persecution when she returned to China after her holiday in Thailand or at the time she departed for Australia and that the authorities had no adverse interest in the applicant for the reasons she had given in or after 1999.

20. The Tribunal then considered the situation if the applicant returned to China, noting her evidence that she would live with her relatives in Fujian province.  The Tribunal acknowledged that the applicant was a Christian and regular churchgoer, but considered that she would be able to return to Fujian province and practise her religion there in a church of her choice for reasons which it gave.  It had regard to independent country information in relation to the practice of Christianity in Fujian province and the fact that the applicant had no particular profile as a Christian that would reasonably attract the notice of the Chinese authorities.  It found that her evidence did not suggest that she did anything more than attend weekly gatherings in China and that in Australia she attended church but was not a leader.  Nor was she a pastor or church leader and her knowledge of scripture was scant.  The Tribunal concluded that the applicant had a low profile as a Christian and that the chance of her being persecuted for reason of her religion in the town to which she claimed she would return, or in Fujian province, was remote.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution on the Convention ground of religion either now or in the reasonably foreseeable future if she returned to China.  This was the only Convention ground under which she made claims.  Hence the Tribunal was not satisfied that the applicant was a refugee. 

1. The applicant sought review by application filed in this Court on 27 August 2008.  She filed an amended application on 14 April 2009.  There are two grounds in the amended application as follows:

   1. The Tribunal breached s.424AA of the Migration Act 1958 by giving clear particulars of information it considered would be the reason or a part of the reason for affirming the decision under review but failing to ensure that the applicant understood the consequences of the information being relied on affirming the decision under review.

   2.  The Tribunal breached s.424A by failing to give the applicant written particulars of information contained in her protection visa application and her letter to the Minister.

2. The applicant did not file written submissions but made oral submissions. It is convenient to consider first the other matters raised in oral submissions and the issue of s.91R(3) of the Migration Act which was raised by counsel for the Minister, before considering ss.424A and 424AA.

The applicant's medical condition

1. The applicant contended that she had a medical condition.  She appeared to take issue with whether the Tribunal had concluded that she was not telling the truth in the face of her explanation that she suffered from memory loss and forgetfulness.  This was said to be an explanation for her inability to provide clear explanations about dates and times. 

2. However it is apparent from the Tribunal reasons for decision that the Tribunal addressed the applicant's claims in relation to her medical condition and considered her evidence in the light of her claimed medical history, albeit it did not accept that certain changes in her evidence and improvisation at the hearing were attributable to memory loss caused by a mental condition.  The applicant's claim that the Tribunal did not consider her medical condition is not made out.

Section 91R(3)

1. Section 91R(3) required the Tribunal to disregard any conduct engaged in by the applicant in Australia unless she satisfied it that she engaged in the conduct otherwise than for the purpose of strengthening her claims to be a refugee. The Tribunal did not make any express findings in relation to the purpose of the applicant’s conduct in Australia. Nonetheless, as the first respondent submitted, it is plain that having concluded that the applicant had become a Christian in 1999, the Tribunal was satisfied that to the extent that the applicant had engaged in conduct such as the practice of Christianity in Australia it was other than for the purpose of assisting her application for a protection visa.

Section 425

1. The applicant also claimed that the Tribunal did not allow her the opportunity to explain the circumstances relating to her protection visa application and letter to the Minister.  It appears that this is a reference to the conduct of the Tribunal hearing.  The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.  It is apparent from the Tribunal account of what occurred in the Tribunal hearing that the Tribunal discussed with the applicant her application for a protection visa, her letter to the Minister and the fact that she had previously claimed to be a Falun Gong practitioner in some detail.  She claimed she had no knowledge of what was in her application and had no memory of a letter being sent to the Minister.  The Tribunal put to her its concerns about discrepancies in her evidence about when she consulted a particular migration agent, whether she had a poor memory or whether she did not wish to talk about her protection visa application and letter to the Minister and also that the fact that she had made what she said were completely false claims to be a Falun Gong practitioner may cause it to have concerns about her credibility. 

2. It is clear on the material before the Court that the Tribunal raised with the applicant the protection visa application and letter to the Minister and gave her the requisite opportunity to address dispositive issues and present evidence and make arguments in relation to such material (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).

3. In particular, if the applicant intended to take issue with whether the Tribunal gave her an opportunity to comment on the fact that she had made Falun Gong claims in her protection visa application and the letter to the Minister, the Tribunal reasons for decision indicate that in the hearing the Tribunal raised with her the fact that her application and her letter to the Minister made claims that she was a Falun Gong practitioner.  She stated she had no connection with Falun Gong and also that she was not aware of a claim in the application that she spent money on a broker to get a passport and visa in Shaanxi province.  The applicant's claims that these matters were not raised with her and that she did not have an opportunity to comment in the hearing are not made out.  

4. In its findings and reasons the Tribunal accepted the applicant's evidence that she was never a Falun Gong practitioner.  While it expressed concern that had she in fact had claims concerning Christianity in China, these claims would have been used rather than entirely fictitious claims, it nonetheless accepted that fabricated claims had been given to the Department on the applicant’s behalf and could not discount that agents misrepresented her claims without her knowledge.  As indicated, the Tribunal also accepted, despite concerns which it explained, that the applicant had become a Christian in 1999.  The applicant failed because the Tribunal did not accept that she had experienced the 1999 incident claimed or the events that followed or, given her profile and independent country information, that she would not be able to practise her religion on return to Fujian province in a church of her choice.  No failure to comply with s.425 is established on the material before the Court. 

Section 424A of the Migration Act

1. Section 424A(1) is as follows:

   Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

2. In the amended application the applicant claimed that there were breaches of both s.424A and s.424AA of the Migration Act. It is convenient to consider first whether s.424A(1) was enlivened or breached. The applicant claimed that s.424A was breached in relation to three categories of information. First, she claimed that it was breached in relation to information concerning Christians in China in independent country information referred to in the Tribunal reasons for decision. However it is well established that information in the nature of independent country information is within the exception in s.424A(3)(a) as information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572 and Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 and Another (2006) 231 CLR 1).

3. The second category of information in respect of which s.424A was said to have been breached was information contained in the applicant's passport. It is apparent from the material before the Court that a copy of the applicant's passport was not only provided to the Department, but was also provided by the applicant to the Tribunal. Such information is accordingly within the exceptions to s.424A(1). It is within s.424A(3)(b) as information that the applicant gave for the purpose of the application for review and, insofar as the passport was given to the Department, also within s.424A(3)(ba) (which is applicable in this instance as the application to the Tribunal was made after this provision came into effect on 29 June 2007), as information that the applicant gave during the process that led to the decision under review. Section 424A(3)(ba) does not extend to information that was provided orally by the applicant to the Department. The applicant did not attend a Departmental interview. There was no information provided orally by her to the Department.

4. The next category of information relied on by the applicant was the information contained in her protection visa application and letter to the Minister. Any information in the protection visa application is within the exception in s.424A(3)(ba). However information in the letter to the Minister is discussed below.

The evidence of the witness

1. While not raised by the applicant, counsel for the Minister addressed the possibility that s.424A(1) applied to the evidence of the witness at the Tribunal hearing. At the request of the applicant, the Tribunal heard evidence from a named witness. Such evidence is not within s.424A(3)(b). It is not information given by the applicant for the purpose of the application for review (see SZEWLv Minister for Immigration and Citizenship [2009] FCA 209 per Rares J).

2. Hence it is necessary to consider whether the evidence given by that witness was information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review within s.424A(1). As discussed further below, it is relevant to have regard to what inferences can be drawn about the Tribunal’s state of mind on the material before the Tribunal bearing in mind the approach taken in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190. The Tribunal's account of the evidence given by the witness was that she:

   … described how she and the applicant first met in Villawood in 2003.  The applicant was a Christian then and continues to be one now.  They attend the same church in Padstow.

3. In its findings and reasons, in considering the applicant's claims to be a Christian, the Tribunal also referred to the fact that at the hearing the witness had spoken of first meeting the applicant at Villawood in May 2003 and of their mutual interest in Christianity.  Relevantly, the Tribunal found that the applicant was a Christian, based on a number of items of evidence, including the evidence of the witness and her statement which described their friendship since 2003.  Notwithstanding that this evidence only placed the applicant’s involvement in Christianity from 2003 and in that sense did not support her claims to have been a Christian in China, the Tribunal accepted that she had been a Christian since 1999 for other reasons.  While the fact that ultimately the Tribunal did not use the information from the witness in an adverse sense is not conclusive of the inquiry, it is a relevant circumstance to be taken into account. 

4. Having regard to the supportive nature of the evidence of the witness an inference can reasonably be drawn that the evidence of the witness was not in any sense material that constituted a rejection, denial or undermining of the applicant's claims to be a refugee in the sense considered in SZBYR and that it was not at any relevant time information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. Hence, s.424A(1)(a) was not enlivened in relation to this information.

The Minister’s letter

1. The applicant also contended generally that the Tribunal failed to comply with s.424A in relation to the information contained in her letter to the Minister dated 8 April 2002 seeking Ministerial intervention. She claimed that the Tribunal breached s.424A by failing to give her written particulars of such information in accordance with s.424A(1) of the Act.

2. Counsel for the first respondent contended initially that even if s.424A(1) was applicable, the applicant's letter to the Minister would be within the s.424A(3)(ba) exception. However that provision applies only to information that the applicant gave "during the process that led to the decision that is under review".  The applicant's letter to the Minister was dated 8 April 2002 which was after the delegate of the first respondent had refused her application for a protection visa (on 14 November 2001) and before she sought review by the Tribunal on 27 February 2008.  In my view, information given to the Minister after the decision under review has been made is not information that the applicant gave “during the process that led” to that decision.  Nor can it be said that such information was information that the applicant gave for “the purpose of the application for review” within s.424A(3)(b). There is no suggestion that the applicant gave a copy of this letter to the Tribunal. Rather, it is apparent on the material before the Court that the Tribunal brought the letter to the attention of the applicant during the Tribunal hearing.

3. Hence it is necessary to consider whether the information contained in the applicant's letter to the Minister is information that the Tribunal considered would be the reason or a part of the reason for affirming the decision that was under review such that s.424(1)(a) of the Act was enlivened. 

4. In the letter to the Minister the applicant stated:   

   I am a Chinese national.  I applied for the protection visa on the ground of religious persecution.  My religion is Falun Gong.  I have been practising Falun Gong for a very long time.  I came to Australia in July 2001.  The reason why I left China was because Chinese government’s crackdown on Falun Gong had become more and more strict.  As a Falun Gong practitioner, I had been persecuted in China and I was lucky to be able to escape from the persecution.  However, for fear of being persecuted in the future and for the safety of my life, I decided to leave China.

5. The applicant made complaints about the conduct of her former migration agent.  She claimed that she was not told about her lack of success in her protection visa application and that the migration agent had not sought review by the Tribunal on her behalf before the time for such an application had passed.  She claimed she only found out about this when she sought the advice of another agent who made enquiries with the Department. 

6. The letter continued:

   I cannot return to China because I am practicing Falun Gong.  Falun Gong is declared as “illegal” by Chinese authorities.  Falun Gong practitioners are persecuted cruelly in China.  As a member of this religion, I dear (sic) not go back to China.  However, in Australia, at least I can practice Falun Gong at my own free will.

7. The applicant also claimed in this letter that if she returned to China she faced danger, problems gaining employment as a Falun Gong practitioner and the threat of detention or sentencing if she kept practising Falun Gong.  She asked the Minister to make a more favourable decision and to grant her a protection visa. 

8. The first issue is whether the letter to the Minister is “information” within s.424A(1). As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [15]:

   Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review.

9. In SZBYR at [17], in considering whether certain portions of a statutory declaration provided in connection with a protection visa application would be the reason or a part of the reason for affirming the decision under review from the perspective of the Tribunal, their Honours referred to the fact that the reason for affirming the decision under review was that the appellants seeking protection visas were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light it was said to be difficult to see why relevant passages in the statutory declarations would themselves be within s.424A(1)(a). Their Honours stated:

   Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations.  Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

10. Taken in isolation, the same can be said about the nature of the material contained in the applicant's letter to the Minister, in particular the claims about Falun Gong. 

11. However, as SZBYR makes clear, it is necessary to identify the information which is said to enliven the operation of the section. In that context their Honours made the point (at [18]) that:

    However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.  The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declarations [provided in connection with the protection visa application] itself. 

12. Their Honours referred with approval to the observations by Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 that the word "information":

    does not encompass the tribunal’s subjective appraisals, thought processes or determinations …nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

13. On this basis as the first respondent contended the inconsistency between the Falun Gong claims in the letter and the Christianity claims made to the Tribunal and any Tribunal appraisal or doubts in that respect would not be “information” in s.424A(1). Insofar as the absence of claims about Christianity in the letter to the Minister can be characterised as a “gap” in the evidence it would not constitute information.

14. A distinction may be drawn between mere gaps and omissions that are used in a way that go beyond “mere omissions” or inconsistencies. The application of s.424A to what may be characterised as omissions was considered in SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236 by Buchanan J at [80] – [94] (although cf Stone and Tracey JJ at [1]). His Honour expressed the view (at [88]), consistent with what was said in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 156 FCR 205 at [38] – [39] per Weinberg J and at [74] per Allsop J (and also see WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]) that: “If an “omission” has evidentiary weight and may be regarded as a fact which is probative it may, depending on the circumstances of the case, be “information” within the meaning of s 424A.”  The Court did not have the benefit of submissions from either party on this issue. 

15. It appears from the Tribunal’s reasons for decision that the fact that completely false claims were made to the Department and Minister, rather than claims based on Christianity, raised concerns about the applicant’s credibility.  In this sense the failure to mention the Christianity claims to the Minister (or the Department) can be said to suggest recent invention by the applicant, as considered by Tamberlin J in SZCNP v Minister for Immigration and Multicultural Affairs [2006] FCA 1140 and Allsop J in SZEEU and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [221] – [22] per Allsop J), and hence to constitute more than a “mere omission” and amount to information as considered by Buchanan J in SZKCQ.  The same would apply to omissions from the protection visa application (but such information would be in s.424A(3)(ba)).

1. It is clear that in determining whether s.424A(1) is enlivened, for the reasons explained by the High Court in SZBYR, the application of s.424A(1) is to be decided upon an examination of the Tribunal's state of mind not at the time of the Tribunal's decision, “but rather at some anterior point, at which the Tribunal turns its mind to the particulars which must be provided” as Perram J stated in SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 at [15]. At [16] Perram J acknowledged in SZLPJ that it may be that the “anterior time” is not a single point of time "but in effect is all times which existed up until the moment of the Tribunal's reasoning process".  His Honour stated that the question is:

   what inferences can be drawn from the material that was available to the Tribunal.

2. Jacobson J pointed out in SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [17] that the question of whether the Tribunal considered the information to be a reason for affirming the decision must be a question of fact. His Honour referred with approval to the observations of Siopis J in SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] as follows:

   [T]he assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information. Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information, although, in my view, that may be a relevant consideration in drawing inferences as to the proper characterisation of the information.

3. Considered in isolation, on its face the applicant's letter to the Minister is not such as to contain in its terms a rejection, denial or undermining of the applicant's claims to be a person to whom Australia owed protection obligations (see SZBYR at [17]). At the Tribunal hearing (by which time the Tribunal had received the applicant’s written statement containing claims based on Christianity in China and documents supporting the applicant’s claim to be a Christian) the Tribunal raised with the applicant her claim to the Department and Minister to have been a Falun Gong practitioner in China and the events surrounding the preparation of the letter to the Minister as well as the protection visa application. It indicated that it had concerns about whether she had a poor memory or whether she did not wish to talk about her protection visa application and letter to the Minister. It advised her that the fact that she had signed documents which contained completely false claims may cause the Tribunal to have concerns about her credibility. While the fact that the Tribunal felt it necessary to invite an explanation about an issue in the hearing does not of itself mean s.424A(1) must apply (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]), it is relevant in relation to what inference should be drawn as to characterisation of the information or about the Tribunal’s state of mind.

4. It is important to have regard to all of the material before the Tribunal, bearing in mind that, as Jacobson J acknowledged in SZMPT at [16] the effect of the High Court's view of the scope of s.424A in SZBYR is that “the Tribunal reasons are not the starting point for determining whether it considered the information to be a reason for affirming the decision under review” (emphasis added).  

5. Nonetheless it is relevant to have regard to such reasons in relation to whether it can be inferred that at any anterior time the Tribunal considered information would be the reason or part of the reason for affirming the decision under review.  This is not a case in which the Tribunal disavowed reliance on particular information in its reasons for decision (cf SZLPJ).  As set out above, in the findings and reasons part of its decision the Tribunal referred to the fact that at the hearing the applicant denied any knowledge of the claims made concerning Falun Gong or of the letter to the Minister.  The Tribunal accepted that at least one of the applicant’s agents was unreliable and may have concocted claims.  It referred to the fact that two different agents seemed to have maintained the applicant's claims concerning Falun Gong, which may suggest that fabrication was not solely of the agents’ making, but that at the hearing the applicant had denied any involvement with Falun Gong.  The Tribunal accepted the applicant’s claim to it that she was never a Falun Gong practitioner. 

6. The Tribunal considered the fact that the protection visa application and letter to the Minister made no mention of the applicant’s claim to be a Christian.  It expressed “concerns” that had the applicant in fact had claims concerning her Christianity in China those claims would have been used rather than entirely fictitious claims. It found that the information provided to the Department on her behalf did not support the applicant’s claims to have been a Christian in China. Nonetheless the Tribunal accepted that fabricated claims had been given to the Department on behalf of the applicant and could not discount that agents had misrepresented her claims without her knowledge. While it accepted that she became a Christian in 1999, this finding is not dispositive of whether s.424A(1) was enlivened at an anterior time. Nor is it such as to make it reasonable to infer that at no relevant time was the Tribunal of the view that information in the letter to the Minister would be part of the reason for the decision.

7. In rejecting the applicant's claims about the alleged incident in 1999 and what occurred thereafter, the Tribunal made no mention of information contained in the letter to the Minister.  However after dealing with this issue, the Tribunal concluded on “the evidence cumulatively” that the applicant was not a credible witness and that she had fabricated her claims for the purposes of claiming refugee status.  This conclusion has to be seen in light of the Tribunal’s acceptance that the applicant was a Christian in China.  However if the information consisting of the claims that the applicant made in her letter to the Minister is regarded as more than the “mere omission” of a claim about Christianity but rather the use of completely false claims such as to constitute “information” within s.424A(1) (see Weinberg J in NBKS at [38]), this is not a case on which an inference should reasonably be drawn that the Tribunal did not at any relevant anterior time consider that such information would not be a part of the reason for affirming the decision under review.

8. On this basis s.424A(1) would be enlivened in relation to the letter to the Minister. Hence it is necessary to consider whether s.424A(2A) applies.

Sections 424A(2A) and 424AA

1. Section 424A(2A) is as follows:

   The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under s.424AA.

2. Section 424AA provides:

   If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)     the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)     if the Tribunal does so--the Tribunal must:

   (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)     orally invite the applicant to comment on or respond to the information; and

   (iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)    if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

3. Consistent with the earlier authorities cited by counsel for the first respondent, Tracey and Foster JJ stated in SZMCD v Ministerfor Immigration and Citizenship [2009] FCAFC 46 at [73] that:

   Section 424A is obligatory. Non-compliance with its provisions will very often amount to jurisdictional error.  Section 424AA is discretionary.  Non-compliance with its provisions will result in the Tribunal not having the benefit of s 424A(2A).  In that event, it must strictly comply with s 424A.

4. Section 424A(2A) exempts the Tribunal from complying with s.424A if it chooses to embark “on a course of action which engages the provisions of s 424AA and if it complies with the requirements of that section” (ibid at [85] and [87]).  This means that if s.424A(1) is enlivened at a time during a review and “clear particulars of the relevant information are given at the hearing orally and the Tribunal otherwise complies with s 424AA(b) in its entirety, then the obligations imposed upon the Tribunal by s 424A(1) will be satisfied in substance during the course of the review hearing by the giving of those oral particulars. In that way, the objects sought to be achieved by s 424A(1) will be met” (ibid at [89]).

5. In SZMCD their Honours did not address the issue of any onus under s.424AA or whether compliance could be inferred from Tribunal reasons for decision in the absence of a transcript of the hearing. No authorities were cited for the first respondent on this issue. It was submitted however that if s.424A was enlivened the material before the Court was such as to establish that the Tribunal complied with s.424AA so that it was relieved of the obligation to comply with s.424A (see SZMCD at [103]).

6. First, it is necessary to address the applicant's contention that the Tribunal breached s.424AA by failing to give her particulars of the information which she contended was within s.424A of the Act. There is clear authority that a failure to comply with s.424AA is not a jurisdictional error and that the consequence of non-compliance with s.424AA is that the Tribunal must comply with s.424A of the Act because the exception in s.424A(2A) does not apply (see SZMCD v Ministerfor Immigration and Citizenship [2009] FCAFC 46 and cases cited therein). If the Tribunal must comply with s.424A(1), the exceptions in s.424A(3) discussed above apply (see SZMCD at [85]).

7. That leaves for consideration the issue of whether the Tribunal complied with the requirements of s.424AA in relation to the applicant’s letter to the Minister.

8. There is no transcript of the Tribunal hearing before the Court. Nonetheless, in some circumstances an inference can reasonably be drawn from the Tribunal’s account of what occurred at the hearing that it complied with s.424AA. In SZMLB v Minister for Immigration and Citizenship [2008] FCA 1921 the appellant asserted that the Tribunal had not complied with s.424AA without identifying any material on which such a claim was based. The same may be said about ground one of the amended application in this case. Rares J had regard to the Tribunal’s statement of decision and reasons, in particular the account of the Tribunal hearing and found “I am satisfied, since that the tribunal’s decision record is the only evidence of what occurred before the tribunal, that no error has been demonstrated in the way in which the tribunal approached its obligations under s 424AA” (at [37]). 

9. On the basis of the decision record his Honour referred to the fact that on a number of occasions the Tribunal had introduced new material at the hearing (consisting of information in other visa applications) “with prefatory remarks, explaining what was to happen and informing the appellant of the opportunity of being able to comment or respond, either at the hearing or after an adjournment, or in writing” (SZMLB at [37]).

10. Similarly, the Tribunal decision record is the only evidence of what occurred at the Tribunal hearing in this case.  The Tribunal recorded that on a number of occasions it raised aspects of information with the applicant, advised her of the possible relevance of such information to its decision and recorded her comments.  In relation to the letter to the Minister, the Tribunal recorded an initial discussion about the contents of and the applicant’s memory of that letter, which it showed her and read out in part, and what it suggested about when she saw a particular migration agent (contrary to her claims).  It queried why she did not remember the letter, which was a “significant” application.  It outlined her response and expressed concern about whether she had a poor memory or did not wish to talk about her application.  After evidence about her claims to be a Christian (during which the Tribunal raised concerns about the implications of certain other evidence) the Tribunal raised with the applicant that her application and letter to the Minister spoke of her being a Falun Gong practitioner.  She stated again that she had no connection with Falun Gong. 

11. Importantly, the Tribunal recorded that towards the end of the hearing it summarised the concerns it had expressed at the hearing, including the fact that it drew to the applicant’s attention that it may have concerns about her credibility as a witness based on the letter to the Minister which contained completely false claims.  In this way it met any obligation to put to the applicant for comment the inconsistency and omission of her claims to be a Christian in that letter.  In recording what occurred at the hearing it stated: 

    The Tribunal indicated she claimed to be a Christian and she raised claims about an incident that happened to her in China.  However, the dates she was saying contradicted her passport.  There were other concerns with her evidence which the Tribunal had raised as it went through her evidence.  It may be that the Tribunal may conclude the incident did not occur.  This may be reinforced by the subsequent passport issue and subsequent holiday in Thailand.  She did not approach the UNHCR in Bangkok and then returned to China.  She then successfully departed China to come to Australia.  All of this suggested she was of no interest to the authorities - and it may lead the Tribunal to consider she had no fear of persecution in China at the time. 

    The Tribunal had before it her application and subsequent letter too (sic) the Minister - she now says these contain completely false claims.  Even though she has signed documents she has washed her hands of what was put in that application.  This may cause the Tribunal to have concerns about her credibility as a witness. 

    During the hearing she had sometimes excused her memory by saying she had a medical condition but there was no evidence of that. 

    She had also cast doubt on her birthdate even though that is the one she used in a statement to the Tribunal – which suggests she had embellished and concocted evidence during the hearing.  The Tribunal does have concerns with her credibility and the claimed incident in China.  The Tribunal would consider whether as a Christian she could safely return to China – and the information shows Fujian is one of the most tolerant provinces in China, and there was nothing about her current religious practices which suggest she would come to the attention of the authorities.

    She stated she has sometimes forgotten the exact dates.  As a Christian she would be punished if she told a lie.  [[The applicant’s witness] then spoke and was asked to be quiet by the Tribunal].  All evidence is true.  Freedom is absent in China.  As a believer in God she fears for her return.  There are things that are not reported.  Religion is a big part of her life.  She spoke about her pleasure in living in Australia. 

12. Read in context this is clearly an account of what occurred at the Tribunal hearing. While the Tribunal decision record does not expressly refer to s.424AA (but see SZMCD at [10] which suggests that an explicit reference to s.424AA is not necessary), the Tribunal then concluded in terms which make it clear that it was addressing the requirements of s.424AA(b) in the hearing:

    In reference to the matters just put to her: the independent information concerning Christians in China; the lack of evidence about a mental condition; and the concerns raised by the Tribunal – the Tribunal then asked whether she wished additional time to comment or respond to the information and this could also be in writing.  After discussion she asked for time to give further submissions in writing.  The Tribunal queried how long she wanted and she asked for a further 10 days.  The Tribunal considered that the applicant reasonably needed additional time to comment or respond to the information and agreed to her request for 10 days.  The Tribunal indicated that it would adjourn the matter until 17 May 2008 inclusive.

13. Hence, insofar as s.424A(1) was enlivened by the information in the letter to the Minister, I am satisfied that the Tribunal chose to utilise the facultative provisions of s.424AA and complied with the requirements of that section. Thus s.424A(2A) was satisfied and the Tribunal was not obliged to put such information to the applicant in writing under s.424A.

14. The grounds in the amended application are not made out.  As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 May 2009