SZMSH v Minister for Immigration
[2009] FMCA 504
•15 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMSH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 504 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 422B, 424A, 424AA, 425 |
| NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 SZJGV v Minister for Immigration and Citizenship and Another (2008) 247 ALR 451 |
| Applicant: | SZMSH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2308 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 15 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2308 of 2008
| SZMSH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an ex tempore judgment in relation to an application for review of a decision of the Refugee Review Tribunal signed on 28 July 2008 and handed down on 7 August 2008 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa. The applicant is a citizen of the People's Republic of China who arrived in Australia in January 2008 and applied for a protection visa in February 2008. She claimed in a statement accompanying her protection visa application to have a well-founded fear of persecution in China in essence on the basis of political opinion or imputed political opinion.
The applicant claimed that she had been a farmer who organised a protest against corrupt communist officials and the government. She also claimed to have drafted an open letter to the local township government urging the government to protect human rights. She claimed to have participated in a rally on 1 July 2007 and to have stood up and shouted slogans and that she had been beaten by the police and detained for one month from 1 – 31 July 2007. She claimed that during that time she was mistreated, but that she was released after she signed a confession and promised not to make further trouble. She claimed she was forced to pay a fine and had to agree to report to the police once a week and that thereafter she was continually in trouble with the local police or authorities, being regarded as a troublemaker with serious anti-government political ideologies. She reported weekly and was often questioned at home or even in the street. She claimed that she asked a friend to organise an overseas trip, but could not stop protesting against the government and from November 2007 she secretly organised friends to distribute a pamphlet she had written condemning the communist government.
The applicant claimed that she obtained an Australian visa at the end of November 2007 but did not leave the country until 1 January 2008, because she had to wait for a chance to guarantee that she could leave safely and wanted time to organise a new pamphlet. She claimed that when the police found that she did not report she was put on a blacklist. Two of her friends had since been arrested and the authorities had discovered her activities. She claimed that this implicated her parents and other families who had been subject to investigation and that her home had been searched. She claimed in her protection visa application that she left the country illegally.
The application was refused by a delegate of the first respondent who was not satisfied that the applicant had participated in protests or distribution of anti-government material as claimed. The applicant sought review by the Tribunal. She provided the Tribunal with supporting documentary evidence. She attended a Tribunal hearing. At the end of that hearing, the Tribunal gave her the opportunity to comment or to seek additional time. According to its reasons for decision she sought additional time. The Tribunal adjourned the hearing until another date at which time, having received a written request from the applicant's migration agent to hear evidence from two witnesses by telephone in China, it took such evidence and discussed other matters with the applicant.
In its findings and reasons, the Tribunal affirmed the decision of the delegate, finding that the applicant was not a refugee. It was willing to give the applicant and her witnesses the benefit of doubt and accept that she was detained for one month by the PSB in July 2007 and that she had been fined, but found that no further action had been taken against the applicant as she was then considered to have effectively served her sentence for her activities and was of no further interest to the PRC authorities.
The Tribunal had regard to the fact that when it had tried to explore with the applicant details of her claimed anti-government and anti-communist party activities, she was vague. It found her deliberately evasive to the point that it was unable to satisfy itself that she had any significant role in protesting or that following her release she was of further interest to the authorities for any reason whatsoever. It found that she had embellished her claims in order to enhance her claims for a protection visa. It did not accept that she was tortured or brutally treated and it was satisfied that if she had been designated as a troublemaker as claimed, she would not have been released from detention and able to leave China only five months later.
The Tribunal also had regard to the fact that the applicant had not been involved in any anti-Chinese government or anti-communist party activities in the almost six months she had been in Australia. It found that this called into question her claim that she was an anti-Chinese government activist in China after her release at the end of July 2007.
The Tribunal addressed the evidence of the two witnesses at various points in its reasons for decision. It accepted the evidence of the witness who was the neighbour of the applicant’s mother that the applicant had used the witness’s telephone to talk to her mother.
The other witness claimed that through classmates who were friends he had provided the applicant with assistance to obtain an Australian visa and to depart China. The Tribunal accepted that the witness assisted the applicant to get her Australian visa, but attached no weight to this fact as this was a matter for the Australian government, not the Chinese authorities. It did not accept that this person would have been able to arrange for the applicant to go through customs and other security formalities at a major airport if she was of any interest whatsoever to the PRC authorities simply because he knew a friend and former classmate who was said to have provided assistance. The Tribunal found it important that no details were provided about how this was done or how it was possible to make such an arrangement and that neither the witness nor the applicant had stated how the witness would be in a position to ensure that the applicant, if she was a well-known anti-government and anti-communist party activist being monitored who had to report weekly, would have been able to go through a major international Chinese airport 100 kilometres from where the applicant and witness lived without any difficulties, if she was on some sort of watch list. It was satisfied that if the applicant had in fact been involved in anti-government and anti-communist party activities after her release from detention, she would have tried to obtain a passport in a different name in order to avoid a risk of detection when she sought to leave.
Having found that the applicant was not a credible witness, while it was prepared to accept that she had been detained, it was satisfied that if she was of any ongoing interest to the authorities after her release, she would not have been able to leave China, even with the assistance of a classmate and friend of the witness. It followed that while the Tribunal accepted that the witness did provide some support for the applicant when she left China, it did not accept the applicant’s claims that she was only able to depart China because of this support and the intervention of the witness or her mother's friend. It found this went to her truthfulness and credibility. Moreover, because she was able to leave China without difficulty, the Tribunal was satisfied that whatever the applicant's past experiences were with the authorities, including her limited involvement in the events that led up to her detention, there was not a real chance she would be subject to serious harm amounting to persecution for a Convention-related reason if she returned to China.
The Tribunal did not accept the applicant’s claims about the ongoing interest of the PSB in her and that they did not know that she was overseas. It was satisfied that if the PSB was concerned to ascertain her whereabouts, it would, at the very least, have checked the movement database in China and found that she had left the country on her own passport in her own name with her correct details in it. The Tribunal did not accept the applicant's reasons for her delay in leaving China after obtaining a visa, finding that it would not be possible for anyone to provide a guarantee of safety and being satisfied that if she was of interest as claimed she would either have sought to leave immediately by obtaining a false passport or by using someone else's passport.
In relation to the applicant’s claim that she had to remain in China because she wished to organise a further pamphlet to put pressure on the government, the Tribunal found that had she feared persecution as claimed, she would have left China immediately once she obtained her visa and also that, notwithstanding her claimed commitment and dedication as an activist, she did not claim to have been involved in any way in anti-Chinese activities in Australia. It found that she had manufactured her claims of post-31 July 2007 activities for the purposes of enhancing her claims for a protection visa. It did not accept those claims.
Nor did it accept her explanation for her lack of involvement in activities in Australia that she did not speak English and did not have friends here given that the audience for such activities would be the Chinese authorities. It did not accept that she wished to protect her mother and her daughter, given her claims about the activities she said she had pursued in China. It found these reasons manufactured to support her claim and that she was not a credible witness.
The Tribunal concluded that other than the one incident of 1 July 2007, the applicant was not a political activist and that there was not a real chance she would be subject to serious harm amounting to persecution if she returned to China either now or in the reasonably foreseeable future. Given that the Tribunal was not satisfied that the applicant was involved in the claimed activities in China after her release from detention, it was not satisfied that she would be involved in such activities if she returned to China.
Based on these findings the Tribunal did not accept her claims about the arrest of colleagues, the suggestion that she was now on a blacklist or that her husband (who to her claimed surprise was in Australia unbeknownst to her) would not go back to China as the PSB would hold him responsible for her activities. The Tribunal was not satisfied that there was a real chance that the applicant’s husband would experience any Convention-related difficulties because of the applicant if he returned to China.
Notwithstanding that the applicant had not made any claims to fear harm on the basis of her pregnancy (in relation to which she had provided a medical certificate to the Tribunal), the Tribunal addressed this issue. It noted that the applicant did not claim that she feared harm because she was pregnant or to fear that she may be in breach of the one child policy or that she had any concern about returning to China either because of the pregnancy or the possibility of another child, despite being given a number of opportunities to raise any such concern. Given the absence of any such claim and the absence of evidence that the applicant would be subject to difficulties because she was having another child, the Tribunal was not satisfied that there was a real chance of serious harm on such basis. It was not able to satisfy itself that the essential and significant reason for any difficulties the applicant may have on returning to China because she was pregnant or had another child would be Convention related.
The Tribunal considered the applicant’s claims cumulatively but, in light of its findings and its rejection of her credibility, was not satisfied there was a real chance that the applicant would be subject to harm on an individual or cumulative basis if she returned to China now or in the reasonably foreseeable future. It found that she was not a person to whom Australia had protection obligations.
The applicant sought review by application filed in this Court on 4 September 2008. She filed a further document headed “Additional Grounds of Application” on 4 December 2008. It has been considered as raising additional grounds.
When the matter was first before the Court the applicant made submissions in relation to her claims and counsel for the first respondent addressed some aspects of those claims. It became apparent that there was an issue about the application of s.424A of the Migration Act 1958 (Cth) to the evidence given by the two witnesses in the second hearing at the request of the applicant in light of the decision of the Federal Court in SZEWL v Minister for Immigration and Citizenship [2009] FCA 209. The hearing was adjourned so that this matter could be addressed by each of the parties. Further written submissions were provided by each of the parties and the matter was addressed in oral submissions by counsel for the respondent today. The applicant was also given an opportunity to respond to any of the submissions made for the respondent but, in essence, confined herself to relying on her written submissions and taking issue with the decision of the Tribunal.
I have considered first the grounds raised by the applicant in the application and in her subsequent written submissions. As the first respondent submitted, the grounds, while expressed as three grounds, are that the decision was affected by apprehended bias, that the Tribunal's findings were contradictory, that the Tribunal failed to comply with s.424A or s.424AA of the Migration Act, that it failed to comply with s.425 and that it made its findings based on nothing but assumption. The “additional grounds” elaborate on the claims based on apprehended bias and assert that the applicant was not provided with a fair hearing. Those additional matters are considered in relation to the claim of bias and failure to comply with s.425. In addition, counsel for the first respondent properly drew the Court's attention to other issues that might be seen to arise on the material before the Court.
The first ground relied on by the applicant is a contention of apprehended bias. The applicant took issue with the fact that the Tribunal found that the witnesses who gave evidence at the second hearing by telephone were “well rehearsed” on what they should say. The applicant contended that at the first hearing the Tribunal had raised issues as to whether it would be possible for her to leave China on a Chinese passport in her own name, given her detention and her claims about ongoing monitoring and her claim that she had been designated as a troublemaker with serious anti-government political ideologies. It was said to be on that basis that she had organised for the witness who assisted her to obtain a visa and to leave China to give evidence. An issue was also raised in relation to how she had obtained information about the situation in China and how she had spoken to her mother on the telephone. She arranged for the witness who had her mother to talk to her on the telephone to give evidence.
The applicant took issue with the fact that while the Tribunal was willing to give the benefit of doubt and accept the evidence of the witnesses that she was detained and used her mother's neighbour's telephone, on the other hand, the Tribunal was said to have refused to accept that she was able to leave China with the help of the witness, even if she was detained and continually had troubles with the authorities.
It is the case that the Tribunal found that the witnesses appeared to be well rehearsed. It made that finding in the context of noting that the applicant had carefully prepared for the hearing and provided documentation in support of the claim and that on the Friday prior to the commencement of the adjourned hearing on the Monday, her adviser had nominated two witnesses to speak on her behalf. The Tribunal recorded that as those witnesses were in China, it went to considerable lengths not to identify itself as being the Refugee Review Tribunal, nor to specifically raise the applicant’s refugee-related claims. Rather, it sought to explore the topics the applicant had identified in her adviser's facsimile ‑ namely, one witness' role in arranging for her to leave China and the other's assistance in enabling her to talk to her mother after she came to Australia. It continued:
That said, however, it was very clear that both witnesses were well rehearsed on what they should say about matters in which the applicant herself had been vague, and showed no knowledge about, during the [earlier] hearing …(Emphasis added),
It continued:
Indeed, at the [earlier] hearing … the applicant's response to many of the critical issues put to her were not just uninformed but rather were deliberately obscure and evasive as, for example, when the Tribunal asked her about the type of visa she had used to enter Australia, and how she could be guaranteed to be able to leave China, notwithstanding traveling (sic) on her own passport issued in her name and with her details in it, given her claims to having been detained for a month and being monitored by the local police and PSB and having officially been designated as a troublemaker who held serious anti-government political ideologies.
It was in light of those concerns about the applicant's evidence, that the Tribunal found that the witnesses’ evidence had been deliberately contrived with the collusion of the applicant. It also found that this went to the matter of the applicant’s truthfulness and credibility. It also referred to a number of inconsistencies between the applicant’s evidence and that of the witnesses, on matters such as whether her mother had a telephone or the reason the mother used the neighbour's telephone. Nonetheless, it stated:
Nevertheless, and be that as it may, from the evidence provided by the witnesses, the Tribunal is willing to give them the benefit of the doubt and accept from their testimony that the applicant was detained for one month by the PSB in July 2007, and she uses her mother's neighbour's telephone to talk to her mother.
The applicant suggested that the Tribunal was biased or appeared to be biased from the perspective of the appropriately informed lay observer. However, when the Tribunal's reasons are considered in context as set out above, it is not apparent from the perspective of the appropriately informed lay observer that these reasons are such that it could be reasonably apprehended that the Tribunal member failed to approach its task with an open mind or a mind open to persuasion in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. It is well known that it is only in a rare and exceptional case that bias on the part of the Tribunal would be established simply by reference to the Tribunal reasons for decision (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. While the Tribunal expressed concerns about the witnesses appearing to be rehearsed and that their evidence was deliberatively contrived, it nonetheless accepted the essential aspects of their claims. It also accepted, consistent with the evidence of the witness, that the applicant was detained. This was said to be consistent with the testimony of the witness that the applicant was involved in some limited and low profile activities to seek compensation for land she believed was wrongly taken away from her in 2007 as well as with documentation she had provided. It accepted that the witness had assisted the applicant to obtain an Australian visa and provided her with some support to leave China.
The Tribunal's treatment of the evidence given by the witnesses is not such as to establish either actual or apprehended bias. Nor generally, insofar as that may be intended to be contended by the applicant, is the fact that the Tribunal made adverse findings in relation to the applicant's credibility and aspects of her claim such as to give rise to a reasonable apprehension of bias. This is not a case in which it can be said that the Tribunal’s fact-finding was conducted in a manner that could be described as “unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way”, such that a fair-minded observer would reasonably apprehend that the conclusions had been reached with a mind not open to persuasion or unable or unwilling to evaluate all the material fairly (cf NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264 at [115] per Allsop J with whom Moore and Tamberlin JJ agreed).
I note that in SZIEW v Minister for Immigration and Citizenship and Another (2008) 101 ALD 295 the view was expressed that while rejection of a witness's hearsay evidence may be seen as apprehended bias, in this case the manner in which the Tribunal dealt with the evidence of the witness is not such as to establish apprehended bias. Its concern was not whether the assistance was provided (in particular the assistance to leave China) but rather whether such assistance would have been able to be provided successfully had the authorities been interested in the applicant as she had claimed. The applicant's claims in relation to apprehended bias are not made out.
This distinction is also relevant to the claim that the Tribunal's findings in relation to the witnesses were contradictory. The critical issue was that the Tribunal did not accept that the applicant would have been able to depart China with assistance as she claimed if she had been of ongoing interest to the authorities. It was willing to accept that she had been detained, but was satisfied that if she was of ongoing interest to the authorities after her release she would not have been able to leave China, even with the assistance of a classmate and friend of the witness. While the Tribunal accepted that the witness did provide some support when the applicant left China, it did not accept the applicant’s claims that she was only able to do so because of this support. These findings are not contradictory.
In that respect, the Tribunal had regard to the fact that no details were provided as to how the applicant was able to leave China with the assistance of a friend or how it was possible to make such arrangement and that neither the witness nor the applicant had stated how the witness would be in a position to ensure that the applicant, if she was well known and an activist who was being monitored as claimed, would have been able to leave as claimed through a major international airport without any difficulties if she was on a watch list.
The Tribunal findings in this respect are not such as to establish jurisdictional error. Insofar as it seems to be asserted that there was a lack of logic, this is not of itself jurisdictional error. It has not been established that the findings were unreasonable in such a manner as to constitute or demonstrate a jurisdictional error.
It may be that the applicant was also suggesting that the Tribunal took a contradictory approach in its treatment of supporting documents she put before the Tribunal. The applicant provided the Tribunal with a copy of a certificate of release from detention dated 31 July 2007 and an English language translation which said that she had been detained on 1 July 2007 for instigating anti-Chinese communist party activities at a 1 July 2007 gathering and that it had been decided by the Public Security Bureau that she was to be released because she had shown a comparatively good attitude in pleading guilty and pledging to co-operate in further investigations. She also provided a document and a translation dated 31 July 2007 headed "Decision on guarantor pending trial", said to be in the name of the municipality Public Security Bureau. That document stated that the a person of the applicant's name was a criminal suspect, that a case was under investigation and that pursuant to the same section of the criminal procedure laws referred to in the other document, she should stay out of custody and await bail pending trial from 31 July 2007 under supervision of a guarantor paying a security and with restrictions on her movement and other activities.
The Tribunal had regard to these documents and, in particular, to the fact that on the face of it these documents both dated 31 July 2007 appeared contradictory, as one document said that having served detention the applicant had been released having pleaded guilty and the other document said she should stay out of custody pending her trial. This seemed to imply that she had been sentenced and served her sentence prior to being tried. It had regard to the fact that the applicant did not claim that she was again arrested or detained or, indeed, that the trial mentioned had proceeded, notwithstanding that she remained in China for a further five months. Accordingly it was satisfied, based on these documents, that the applicant was detained for one month in July 2007 and fined, but that no further action was taken against her. It was satisfied that the reason for this was because the applicant was considered by the authorities to have effectively served her sentence for her activities during the 1 July 2007 event and therefore that she was of no further interest to the authorities having repented, pleaded guilty and shown a comparatively good attitude and promised co-operation. In other words, the Tribunal did not reject these documents, but rather interpreted them as best as it could based on the internal contradiction and having regard to the applicant's evidence and the fact that she did not claim that she had been subsequently subject to arrest or required for or subject to a trial. In particular, it did not make any finding that the documents were not authentic. The remark that they appeared contradictory and the manner in which the Tribunal approached these documents is not such as to establish a jurisdictional error.
The next ground is that the Tribunal failed to comply with s.424A. There is also a mention of s.424AA. It is, however, now clear (see SZMCD v Ministerfor Immigration and Citizenship [2009] FCAFC 46) that a failure to comply with s.424AA is not a jurisdictional error but, rather, means that the s.424A(2A) exception from the obligation under s.424A(1) does not apply. There is no suggestion in this case that there was compliance with s.424AA. Hence, it is necessary to consider whether there has been a failure to comply with s.424A. There were a number of items of information before the Tribunal. The applicant referred in the review application to the fact that she provided a number of documents to the Tribunal. It was not necessary for the Tribunal to put to the applicant for comment the material that she provided to it for the purpose of review in light of the exception in s.424A(3)(b). Insofar as the applicant contended that it was necessary to put independent country information to her for comment, that would be within the exception in s.424A(3)(a), and the information that the applicant gave to the Department – I note that there is no issue in relation to any interview – was within the exception in s.424A(3)(ba). Insofar as the applicant intended to contend more generally that the Tribunal was obliged to put its provisional reasoning to her under s.424A, the Tribunal is not obliged to put its provisional reasoning to an applicant under s.424A (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190).
The matter that raised the issue of the application of s.424A on the last occasion the matter was before the Court was the fact that the Tribunal took evidence from two witnesses at the applicant's request. The Federal Court made it clear in SZEWL (at 47]) that where a person other than the applicant gives the Tribunal information at a hearing, that information is not given by the applicant for review within the meaning of the exception in s.424A(3)(b). Hence it is necessary to consider whether the information given by those witnesses was information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review within s.424A(1). It is relevant in that respect to note that the only evidence before the Court of the content of the evidence given by the witnesses is the Tribunal account of the Tribunal hearing. There is no transcript of either of the Tribunal hearings, in particular of the second Tribunal hearing at which the witnesses gave evidence.
I accept the submissions for the Minister that it can be inferred on the material before the Court that none of the information obtained from those two witnesses was information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. In that respect, it is relevant to have regard to what was said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, in particular, the majority decision of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Their Honours pointed out at [15] that it is necessary to consider what the information is that it is said the Tribunal should have provided. The Court drew a distinction between, in that case, relevant passages in a statutory declaration and inconsistencies that were said to arise between the statutory declaration and the oral evidence. The focus, their Honours suggested, was on the information in the statutory declaration itself. Similarly here the information in question is the information obtained from the witnesses. In SZBYR, their Honours had regard to whether the portions of the information in question contained in their terms “a rejection, denial or undermining” of the appellant's claims, finding that the statutory portions of the statutory declaration in issue did not do so and that, 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” (at [17]). The same may also be said in relation to the evidence of the witnesses in this case.
It is the case that in SZBYR the High Court suggested, having regard to the use in s.424A(1) of the future conditional tense rather than the indicative, that the test in s.424A(1) was to be applied not by looking at the Tribunal's published reasons, but was to be determined in advance and independently of the Tribunal's particular reasons on the facts of the case. Nonetheless, the Federal Court has made it clear that it is permissible to have regard to the Tribunal's reasons, not as the starting point, but in drawing inferences as to the proper characterisation of information and in determining whether at any anterior time it would be material that the Tribunal considered was the reason or a part of the reason for affirming the decision under review. (See, for example, SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36], SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [17] and SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 at [15] – [17].)
The question is whether the Court can infer on the balance of probabilities that at any time from the time when it became aware of information until the Tribunal handed down its decision, the Tribunal considered that the evidence of the witnesses would lead to a rejection, denial or undermining of the applicant's claims. In that respect it is relevant in the circumstances of this case that, as the High Court pointed out in SZBYR at [18], if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellant's evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting information. Moreover, as Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477, “the word "information" does not encompass “the Tribunal's subjective appraisals, thought processes or determinations. Nor does it extend to identify 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, etcetera.” In SZBYR the Court referred with approval to these views and went on to state at [18]:
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. 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 declaration itself.
That reasoning is relevant insofar as the Tribunal had regard to inconsistencies between the evidence of the witnesses and the applicant. Such inconsistencies are not information within s.424A(1).
When one turns to the Tribunal reasons for decision for assistance in this process (given that that is the only material before the Court in relation to the content of the information), it is apparent that, as indicated earlier, while the Tribunal expressed some concern about the witnesses being well rehearsed, in fact the evidence that the witness who was the neighbour of the applicant's mother gave about the applicant speaking to her mother through the neighbour's telephone was accepted. In no sense can that witness’s evidence be said to be information that the Tribunal would have considered to be part of the reason for affirming the decision under review.
The other witness, according to the Tribunal, was to give evidence as to how the applicant was able to leave China. The Tribunal recorded that the applicant advised that this was correct as he had arranged her visa and helped her through customs. The Tribunal also recorded that that witness gave evidence that he did not work at the passport office or at the airport, that he described the airport from which the applicant left China and the distance from where they lived, and, when asked what role he played in arranging for the applicant to leave China, claimed he arranged the Australian visa and the right time for her to leave. The Tribunal recorded that asked how he arranged the Australian visa, the witness replied he did this through a classmate. When asked how he had arranged for the applicant to leave China, the witness again replied that this was also through a classmate who was a friend and that he arranged a time for her to leave China. The witness told the Tribunal that in July 2007 the applicant was detained in the PSB office as in May 2007 she had had disputes with the government about reasonable compensation and about some of her activities, that the Chinese government was very fond of settling the debt after an incident had occurred and that this was the reason she had to leave China, and that as his aunt had done a lot for him, he had to help the applicant to leave the country.
In effect the Tribunal gave the witnesses the benefit of the doubt and in fact accepted, partly on the basis of their evidence, that the applicant was detained as claimed. The second witness in particular gave evidence that the applicant was detained in July 2007. The Tribunal explained the difficulties it had with the applicant's claims she was of ongoing interest to the authorities, finding that this was inconsistent with her ability to leave China, albeit with the assistance of the witness.
On the material before the Court, the evidence of this witness, indeed of both witnesses, is not such that it can reasonably be inferred that the Tribunal at any relevant time considered that such evidence would be the reason or a part of the reason for affirming the decision under review. I acknowledge that the published reasons are not definitive, but also that they can, as is clear from Federal Court decisions, assist this Court in drawing inferences in relation to the application of s.424A. The manner in which the Tribunal treated the witnesses' evidence is consistent with the view that it was not such as to be regarded at any time as part of the reason for affirming the decision under review.
To the extent that the decision enables such inferences to be drawn, the only inference open is that at no time did the Tribunal consider the information it obtained from the witnesses would be the reason or a part of the reason for affirming the decision under review. I have considered the nature of the evidence itself and the Tribunal reasons for decision. There is no other relevant evidence before the Court, apart from the very brief facsimile from the applicant's migration agent indicating that the evidence that they sought the Tribunal obtain from the witnesses related to the fact that one person arranged for the applicant to leave China and the other was the neighbour and the applicant had contacted her parents through that person. That evidence is not such as to lead to an inference that the Tribunal considered that any of the information from those witnesses would be part of the reason for affirming the decision under review. Hence the Tribunal was not obliged to issue an invitation to comment on such information, as the obligation under s.424A(1) did not arise. No failure to comply with s.424A has been established.
The next ground of review arises in a number of ways from the grounds relied on by the applicant in the application for review and her additional grounds and also from her recent submissions which address not only s.424A but also take issue more generally with the fairness of the Tribunal and the conduct of the hearings. It is contended that there was a failure by the Tribunal to comply with s.425 of the Act or otherwise to accord the applicant a fair hearing.
While s.425 was raised in the original application, in fact the particulars of that ground appear to relate to s.424A and 424AA. In the additional grounds the applicant took issue with the Tribunal findings and suggested that those matters which gave rise to apprehension of bias also established that she was not afforded a fair hearing. On their face, the Tribunal's findings do not, either of themselves or taken in connection with the Tribunal's account of the Tribunal hearing, establish that it failed to comply with s.425. In particular, there is nothing in the material before the Court to suggest or establish that the Tribunal failed to raise with the applicant dispositive issues in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. Nor is it established that there was a failure to comply with s.425 in the manner in which the Tribunal dealt with the evidence from the two witnesses or the manner in which it conducted the hearing in relation to those two witnesses.
Dealing first with the specific issues raised in relation to the witnesses, the applicant suggested that the Tribunal failed to create any fair chance for the witnesses to give their evidence or information in detail and failed to put particular questions to the witnesses, such as how it was done or how it was possible to make such an arrangement. The evidentiary basis for a contention about the Tribunal failing to accord procedural fairness to the applicant in the manner in which it conducted the hearing in relation to the witnesses is not made out. There is no transcript of the Tribunal hearing before the Court, and the Tribunal's account of its questioning of the witnesses is not such as to establish a failure to comply with s.425.
Counsel for the first respondent conceded that one may be able to argue by analogy a jurisdictional error of the nature considered in SZBEL in relation to the manner in which a Tribunal dealt with witnesses at a Tribunal hearing (in addition to the manner in which the Tribunal dealt with an applicant at a Tribunal hearing), but, in this case, while the Tribunal's description of the evidence the witnesses gave is relatively brief, the fact that the Tribunal did not identify itself as the Refugee Review Tribunal or specifically raise the applicant's refugee-related claims are not matters that go in any way to establish a failure to accord a fair hearing.
The Tribunal raised with the witnesses, according to its account of the hearing, the issues that the applicant wished to have raised with them. It sought to explore the very topics that had been put to it in the facsimile from the migration agent and the applicant herself at the second Tribunal hearing. The way in which it described the process and the questions that it put are not such as to indicate that it failed to give them an opportunity to give their evidence or information in detail.
I note also in that respect that at the conclusion of the hearing, after the witnesses had given evidence, the Tribunal recorded that it asked the applicant if she had anything to add or if she wanted to respond to anything that had been raised by the witnesses. She did not suggest that there was any response or anything that she wished to add. Rather, she claimed that all she said was true, she did not want to hide anything, she was scared and did not want the next generation to suffer. It has not been established that there was any failure to comply with s.425 or lack of procedural fairness (insofar as that applies having regard to the operation of s.422B of the Migration Act) in the manner in which the Tribunal conducted the hearing in relation to the evidence of the witnesses.
Nor, more generally, is there anything to establish a failure to comply with s.425 in the manner in which the Tribunal conducted the two hearings. On the contrary, it is apparent from the Tribunal's account of what occurred at each of those hearings that it raised with the applicant dispositive issues. It also raised on a number of occasions matters of concern. It put to the applicant significant aspects of her evidence and issues about that evidence and gave her the requisite opportunity under s.425 to present evidence and argument. It is apparent that the Tribunal was at pains to point out to the applicant critical issues and to invite evidence and her comments in that respect.
At the conclusion of the first hearing the Tribunal gave the applicant the opportunity to have additional time to address the issues that it had raised in that hearing. When she sought additional time, it adjourned the hearing. At the second hearing, it reminded her that this was an opportunity to enable her to respond to information at the earlier hearing and again put to her a number of issues of particular concern, in particular her ability to leave China safely on her own passport without any difficulty whatsoever, notwithstanding her claim that she was not only detained but also thereafter formally designated a troublemaker and required to report. The Tribunal not only put these concerns to the applicant but also put to her that this went to the matter of her credibility and the truthfulness of her claims.
It also put to her, significantly, that it was having trouble accepting that she had any real political involvement in anti-government activities in China and the relevance of the fact that she did not claim to have been involved in any anti-government or anti-communist party activities since her arrival in Australia. This was said to call into serious question whether she was in fact a political activist with the activities that she claimed to have been involved in and this was also said to go to the matter of the truthfulness of her claims.
Moreover, the Tribunal asked the applicant if there were any other claims at all or any matters that she wanted to put before the Tribunal. No failure to comply with s.425 is established on the material before the Court.
The next ground of review that is that the Tribunal made its findings based on nothing but assumption. The applicant took issue with conclusions of the Tribunal in relation to her claims. In particular she denied what she described as the Tribunal's allegation (but was in fact a Tribunal finding) that she had greatly embellished her claimed role to enhance her claims for protection and took issue with the fact that it did not accept that she was an activist or tortured and brutally treated as claimed and that it found her answers about the letter and pamphlet she claimed to have been involved in were well rehearsed, but that when it tried explore these claims she was not able to elaborate on them to a level that would be reasonably expected of a person who had actually been involved in these activities in a meaningful way who had repeatedly put herself and family and friends at considerable risk by so doing.
It is apparent from the decision, indeed from this finding itself, that rather than basing its decision simply on assumption, the Tribunal considered the applicant's claims and whether it was satisfied on all the evidence before it that the applicant was a person to whom Australia owed protection obligations. This ground is not made out.
Insofar as the applicant seeks merits review, merits review is not available in this Court. No jurisdictional error is established on any of the bases contended for by the application.
In addition, counsel for the first respondent raised with the Court two additional issues that might be seen to arise on the material before the Court. The first was the possible application of s.424(2) of the Act as it stood at the relevant time and the requirements that flow from s.424(2) through ss.424(3), 424B and s.441A in relation to the evidence it obtained at the request of the applicant at the second hearing over the telephone from two witnesses.
Section 424(1) relevantly provided at the time of the decision in question:
In conducting the review, the Tribunal may get information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Under sub-s.(2), without limiting sub-s.(1), the Tribunal may “invite” a person to give “additional information,” and, if it does, certain requirements apply. The issue is whether or not the Tribunal invited those witnesses to give additional information within s.424(2) of the Act.
In SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 the Full Court of the Federal Court recently considered the scope of s.424(2). The first issue it addressed was whether information was “additional information” within s.424(2) only when it was additional to information previously provided to the Tribunal by the invitee. The Full Court concluded at [99] – [100] that additional information was confined to information additional to information previously given to the Tribunal by the invitee.
In this case there was no prior information given to the Tribunal by either of the witnesses who gave evidence on behalf of the applicant at the second Tribunal hearing. Hence, s.424(2) did not apply to such information as it was not “additional information” within that section. In particular, the obligation for such an invitation to be in writing under s.441A did not apply.
Moreover I note that in SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 Middelton J suggested that in a case where the Tribunal obtained evidence at the request of an applicant, the Tribunal did not “invite” any person to give additional information pursuant to s.424(2) of the Act. On that approach there was no invitation. No failure to comply with s.424(2) or the obligations that flow therefrom is established in this case.
Finally, counsel for the first respondent raised the operation of s.91R(3) of the Migration Act. Section 91R(3) of the Act provides that for the purposes of the application of the Act in determining whether a person has a well-founded fear of persecution the Minister and, in this case, the Tribunal, must disregard any conduct engaged in by the person in Australia unless the person satisfies the Minister or Tribunal that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claims to be a refugee within in the meaning of the Refugees Convention as amended by the Refugees Protocol.
It is clear from the decision of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship and Another (2008) 247 ALR 451 (by which I am bound) that the restriction in s.91R(3) on taking into account conduct in Australia applies generally in relation to the way in which conduct could be taken into account, that is either favourably or adversely. In this instance the Tribunal referred in its reasons for decision to the applicant's activities in Australia, in particular to the fact that she had not claimed to be involved in any way in any anti-Chinese government and Chinese communist party activities in Australia. She provided an explanation based on her lack of English and a claim that she had no friends here. The Tribunal had regard to the lack of such activities in the context of considering the claims she made about political activism and used this material adversely in relation to the applicant's claims. Insofar as this is “conduct” to which the Tribunal had regard to in reaching its decision (and the first respondent did not submit that there was no “conduct”), it is necessary to consider whether the Tribunal was satisfied that such conduct was entered into otherwise than for the purpose of strengthening the applicant's refugee claims.
The Tribunal made no reference to s.91R(3) in its findings and reasons. Counsel for the first respondent contended nonetheless that it was plain on the Tribunal reasons for decision that the conduct in Australia which the Tribunal had regard to was plainly in the Tribunal's view, not conduct engaged in for the purposes of strengthening the applicant's claim to be a refugee. It was submitted that the Court could infer that the Tribunal was of that view, albeit that it did not express itself in those terms. I accept in the circumstances of the case that the only inference that is reasonably open on the Tribunal's reasons for decision is that the Tribunal was satisfied that the applicant's conduct in Australia was engaged in for purposes other than strengthening her claims to be a refugee. (In that respect, see the approach taken by Emmett FM in SZMNO v Minister for Immigration & Anor [2008] FMCA 1563). Such a view is necessarily implicit given the Tribunal conclusions in relation to that conduct and the way in which it used it in relation to the applicant's claims. I agree with Emmett FM that the Tribunal's approach and the view it has taken to enliven the provision in s.91R(3) does not necessarily have to be express and may be implicit from the Tribunal's reasons for decision.
As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $5,865, which is the present scale amount. In circumstances where the claims raised by the applicant raised matters of some considerable complexity which needed to be extracted from the body of the material presented, having regard to the particular circumstances of this case and the matters that were raised in this case, I consider that the amount is, in this instance, an appropriate amount not only because it appears in the Federal Magistrates Court Rules but also having regard to the nature of this and other similar matters. The applicant tells the Court that she has no money and is in a situation of hardship. However in the circumstances that is not a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 27 May 2009
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