SZMZF v Minister for Immigration
[2009] FMCA 431
•14 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMZF v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 431 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – citizen of China claiming fear of persecution for reason of religion – applicant claimed to be a member of underground Catholic Church – credibility – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.91R(3) – whether the Tribunal failed to take evidence into consideration as to whether the applicant was a Catholic – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.425 – jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425, 476 |
| SZJGV v Minister for Immigration and Citizenship (2008) 170 FCR 515; [2008] FCAFC 105 Telstra Corporation Ltd v ACCC [2008] FCA 1758 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZLDV v Minister for Immigration and Citizenship [2008] FCA 1211 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 |
| Applicant: | SZMZF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3122 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 April 2009 |
| Date of Last Submission: | 1 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms McWilliam |
| Solicitors for the Applicant: | Legal Aid NSW (Ms Lowes) |
| Counsel for the Respondents: | Ms Wong |
| Solicitors for the Respondents: | Sparke Helmore (Ms Whittemore) |
ORDERS
An order in the nature of certiorari is to issue quashing the decision of the Second Respondent Refugee Review Tribunal made on 30 October 2008 affirming the decision not to grant the Applicant a Protection (Class XA) visa.
An order in the nature of mandamus is to issue remitting the application of the Applicant for a Protection (Class XA) visa to the Second Respondent for determination according to law.
The First Respondent is to pay the Applicant’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3122 of 2008
| SZMZF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of China, applies for review of a decision of the Refugee Review Tribunal handed down on 30th October 2008 affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant her a protection visa. The Applicant seeks orders:
a)declaring the Tribunal decision to be invalid;
b)setting aside or quashing the Tribunal decision (an order in the nature of certiorari); and
c)referring the matter to the Second Respondent Tribunal for further consideration according to law (an order in the nature of mandamus).
The grounds of review that were argued are:
a)Breach of s.91R(3) of the Migration Act 1958;
b)Failure to take into consideration evidence in relation to the finding on whether the Applicant was a Catholic; and
c)Breach of s.425 of the Act in failing to put the Applicant on notice that her claimed Catholicism was an ‘issue’.
Background
The Applicant arrived in Australia on 15th February 2008. On 27th March 2008 she applied for a Protection (Class XA) visa. In a statutory declaration accompanying her application, the Applicant stated that:
a)She does not speak either Mandarin or Cantonese, only Fuqing.
b)She cannot read or write.
c)Her grandmother and her parents were Catholics.
d)She attended underground Catholic church services.
e)She was baptised on 13th October 1984.
f)She married a man who was a very devout Catholic.
g)She was detained for four days by her village committee in January 2005 after being found praying at the home of a sick man.
h)She was released after her mother in law paid a fine of 5,000 yuan.
i)Her husband was detained by the PSB for four days in September 2006. The Applicant stayed with a friend.
j)The Applicant started making arrangements to leave China in around 2007 but it was not until 13th February 2008 that she received passports for herself and her daughter already stamped with Australian visas.
k)The Applicant and her daughter left China on 14th February 2008 and arrived in Australia the following day.
l)After she arrived in Australia, the Applicant started attending a church in Flemington, New South Wales.
m)Later the Applicant attended a Catholic Church in Lidcombe, NSW.
n)The Applicant fears arrest and detention if she were to return to China
The Applicant appointed the Refugee Advice & Casework Service (RACS) to represent her.
The Department of Immigration and Citizenship invited the Applicant to attend an interview with a Departmental officer on 10th June 2008. The Applicant provided the following documents to the Department:
i)A report from a clinical psychologist dated 26th May 2008 stating that she reported and displayed a range of symptoms associated with Post-traumatic Stress and Dysthymia (depression);[1]
ii)A letter dated 2nd June 2008 from the Rev. D.C.Vaughan of St Joachim’s Church at Lidcombe, stating that the Applicant has been regularly attending church services;
iii)A reference from Fr. Paul McGee of the Columban Mission Institute dated 9th June 2008, stating that the Applicant attended Mass every Sunday at St Dominic’s Catholic Church at Flemington; and
iv)Other supporting documents.
[1] Court Book 66
The Applicant attended the interview on 10th June 2008 in company with her representative.
A delegate of the Minister refused the application for a visa on 11th July 2008. The delegate did not believe that the Applicant was persecuted by Chinese authorities for religious reasons. The delegate found significant inconsistencies in the information provided to the Department in support of the Applicant’s claim.[2] The delegate noted that the Applicant was adamant that her husband was detained in September 2006 when the Department’s investigation found that he had performed banking transactions during that time. The delegate accepted that the Applicant had been engaged in religious activities in Australia. However, the delegate found that the Applicant had fabricated claims of religious persecution in China and engaged in Christian activities in Australia to bolster the case that she was a refugee. The delegate disregarded that conduct under s.91R(3) of the Migration Act.[3]
[2] Court Book 160
[3] Court Book 165
After her application for a protection visa was refused, the Applicant applied to the Refugee Review Tribunal of the delegate’s decision.
Application to the Refugee Review Tribunal
The Applicant appointed Mr Lumsdaine of the Refugee Advice and Casework Service (RACS) to represent her. Her application for review was lodged at the Sydney Registry of the Tribunal on 15th July 2008.
The Tribunal wrote to Mr Lumsdaine at RACS on 29th July 2008. The letter was headed Invitation to Comment on or Respond to Information in Writing and was clearly intended to comply with the requirements of s.424A of the Migration Act. The letter drew the Applicant’s attention to the fact that on 6 different occasions between 30th June and 30th November 2007 she had signed her name or written her name on various documents in relation to her daughter’s student visa application.
The Tribunal’s letter told the Applicant that the information was relevant because she had claimed to be illiterate when she applied for a protection visa and had signed her name with a cross. The letter said:
The Tribunal may find that you are not illiterate given that your signature appears on a number of documents over several months in 2007. If the Tribunal finds that you are not illiterate it will find that you have provided false information in your application for a protection visa. The Tribunal may then disbelieve other claims you have made and evidence you have given.[4]
[4] Court Book at 181
The Tribunal’s letter invited the Applicant to reply in writing by 12th August 2008.
Also on 29th July 2008 the Tribunal invited the Applicant to attend a hearing, scheduled for 21st August. The Applicant’s adviser replied and forwarded a completed Response to Hearing Invitation, indicating that she wished to attend and would require a Fuqing interpreter.
The Applicant’s adviser forwarded a statutory declaration to the Tribunal on 15th August, which replaced a fax on 5th August, where two of the pages were not transmitted.
On 19th August 2008 the Applicant’s adviser forwarded to the Tribunal a letter dated 14th August from Fr. McGee of the Columban Mission Institute, attesting to the Applicant’s regular attendance at St Dominic’s Catholic Church at Flemington.
The Applicant attended the Tribunal hearing on 21st August 2008, accompanied by her adviser, Mr Lumsdaine, and Fr. McGee. She gave evidence with the assistance of a Fuqing interpreter. The Applicant produced her passport at the hearing. Fr. McGee gave evidence on the Applicant’s behalf.
After the hearing Fr. McGee wrote to the Tribunal to correct and expand on some matters arising out of his evidence.
On 19th September 2008 the Tribunal wrote a further s.424A letter to the Applicant, seeking her comments on some 26 items of information. The Tribunal’s letter sought the Applicant’s written comments or response by 3rd October 2008.
On 3rd October, Mr Lumsdaine sent a 16 page letter to the Tribunal in answer to its s.424A letter. The letter enclosed statutory declarations signed by:
a)the Applicant;
b)the Applicant’s daughter;
c)a woman called Xiao Qing Wang, who stated that she had been a nun in China; and
d)a person called Ji Pang Wang.
Mr Lumsdaine’s letter also enclosed a letter from Xiao Qing Wang and a letter from Rev. D.C. Vaughan.
The Refugee Review Tribunal Decision
The Tribunal handed down its decision on 30th October 2008, affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Tribunal found that the Applicant was a citizen of China based on her Chinese passport.
The Tribunal stated that it had regard to the Applicant’s evidence and that of witnesses, as well as submissions from the Applicant’s representative and Country Information provided by the representative. However, it did not accept the Applicant’s evidence that she had been a member of the underground Catholic Church, nor did it accept that she would face arrest on her return from China. It did not accept that the Applicant genuinely feared arrest and persecution because of her involvement in underground church activities.
The Tribunal found that there were significant inconsistencies in the Applicant’s evidence and found at paragraph 194 of its decision record:
The Tribunal has considered all the submissions, explanations and evidence provided by the applicant and her representative. However, because of the large number of inconsistencies in the applicant’s evidence and the Tribunal’s findings that her explanations for the inconsistencies are not credible, the Tribunal finds that the applicant is not a credible witness.[5]
[5] Court Book 296 at [194]
In particular, the Tribunal:
a)did not accept that the Applicant was illiterate;
b)did not accept the Applicant’s explanation that there was a misunderstanding about whether the mother of a woman called Yu Ying or a relative worked for the PSB;
c)found an inconsistency between the Applicant’s claim at the hearing that she had a brain problem and headaches and her claim that she had anxiety and depression on the one hand and the fact that the doctor who conducted a medical examination of the Applicant had recorded that she had no medical problems on the other;
d)placed relatively little weight on the psychologist’s report provided by the Applicant;
e)did not accept the Applicant’s evidence that she was detained in January 2005 after going to pray at the home of a church member;
f)did not accept the Applicant’s claim that she was the leader of a prayer group or attended a prayer group;
g)did not accept that the Applicant was ever arrested or detained because of her involvement with the underground Catholic Church in China; and
h)did not accept the Applicant’s evidence that she would be persecuted if she returned to China.
The Tribunal stated at paragraph 205 of its decision:
Because of the Tribunal’s findings that the applicant is not a credible witness and her claims are not credible the Tribunal does not accept the applicant’s evidence that she was a member of the underground Catholic Church in China and finds that she will not attend an underground Catholic Church in China. Because of the large number of inconsistencies in the applicant’s evidence the Tribunal does not accept that the applicant is a Christian or a Catholic and does not believe the applicant’s evidence about her experiences in China.[6]
[6] Court Book 298 at [205]
The Tribunal also made this finding about the Applicant’s church attendance in Australia at paragraph 213 of its decision:
The Tribunal accepts that the applicant has been attending church services in Australia. Although Father McGee and Rev. Vaughan gave evidence that the applicant regularly attends church, the Tribunal is not satisfied that the applicant is a Roman Catholic or a Catholic or a Christian. The Tribunal finds that she will not attend church or continue to attend church or practise Christianity or Catholicism if she returns to China. Given the applicant’s lack of credibility and the significant inconsistencies in her evidence, the Tribunal finds that the applicant has not satisfied the Tribunal that she engaged in the conduct in Australia otherwise than for the purpose of strengthening her claims to be a refugee. Accordingly, the Tribunal must disregard the conduct engaged in by the applicant in Australia pursuant to s. 91R(3) of the Act.[7]
[7] Court Book 300 at [213]
The Tribunal concluded that there was not a real chance that the Applicant would face serious harm for reasons of her religion, her membership of a particular social group or any other Convention reason if she were to return to China at that time or the reasonably foreseeable future.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
Application for Judicial Review
The Applicant filed an application and an affidavit in support at the Court on 27th November 2008. Although the Applicant was unrepresented when she commenced proceedings, on 12th December 2008 Legal Aid NSW filed a Notice of Appearance, advising that it was representing her.
The Applicant’s original application set out these grounds of relief:
1. In making its decision, the Tribunal failed to observe procedures which were required by law to be observed in connection with the making of the decision, and it failed to take into account a relevant consideration it was bound to take into account, because it failed to have regard to evidence provided to the Tribunal in determining that the applicant was not Catholic (and therefore did not have a well-founded fear of persecution on the basis of her religion).
2. In making its decision:
· The Tribunal asked itself the wrong question; and
· Failed to exercise its jurisdiction
Because the Tribunal asked itself the question whether the applicant was a witness of truth rather than whether the applicant had a well founded fear of persecution on the basis of her religion based on the totality of the evidence before the Tribunal
3. In making its decision, the Tribunal failed to observe procedures which were required by law to be observed in connection with the making of the decision, and took into account an irrelevant consideration it was bound not to take into account, because it took into account the applicant’s conduct in Australia in making an adverse credibility finding in breach of s.91R(3) of the Migration Act 1958.
4. In making its decision, the Tribunal failed to observe procedures which were required by law to be observed in connection with the making of the decision, because the Tribunal failed to put the applicant on notice that the applicant’s claimed Catholicism was an ‘issue’ and that she may not be accepted as a Catholic in breach of s.425 of the Migration Act 1958.
Counsel for the Applicant, Ms McWilliam, argued three grounds of review, summarised as follows:
a)Breach of s.91R(3) of the Migration Act 1958;
b)Failure to take into consideration evidence in relation to the finding on whether the Applicant was a Catholic; and
c)Breach of s.425 of the Act in failing to put the Applicant on notice that her claimed Catholicism was an ‘issue’.[8]
[8] Applicant’s Outline of Submissions paragraph 4
The Applicant’s Submissions
Counsel for the Applicant submitted in respect of Ground 1 that the Tribunal took into account the Applicant’s evidence that she and her daughter attended church in Australia. It used an inconsistency in that evidence as part of an adverse credibility finding against the Applicant. Later, the Tribunal found that s.91R(3) required it to disregard the Applicant’s evidence about her conduct in Australia.
Ms McWilliam submitted that the consideration of evidence of the Applicant’s conduct in Australia in assessing the Applicant’s credibility, which the Tribunal found must be disregarded under s.91R(3) of the Act, was a jurisdictional error (SZJGV v Minister for Immigration and Citizenship[9]at [22]-[25]). The particular paragraph of the Tribunal’s decision that counsel referred to is paragraph 191, where the Tribunal said:
A further inconsistency concerned the applicant’s evidence about her attendance at Sunday services with her daughter. At the Tribunal hearing the applicant stated that she attended church in Australia on the first Sunday after she arrived on 17 February 2008 and that she attended this church every Sunday and she went to this church with a neighbour for the first two weeks but thereafter she went with her daughter. At the Tribunal hearing and in a letter to the Tribunal, Father Paul McGee gave evidence that the applicant regularly attended the Chinese Catholic Mass at St. Dominic’s Catholic Church since her arrival in Sydney in February 2008. However, when asked at the hearing whether the applicant’s daughter attends the church service, Father McGee stated that he could not say that the applicant’s daughter attends. After the hearing Father McGee provided a letter stating that he remembered the applicant’s daughter at the Refugee Advice and Casework Services office. This discrepancy in the evidence about whether or not the applicant’s daughter attended the Sunday church services leads the Tribunal to conclude that the applicant is not telling the truth.[10]
[9] (2008) 170 FCR 515;[2008] FCAFC 105
[10] Court Book 295 at [191]
Ms McWilliam submitted that the whole paragraph deals with the Applicant’s conduct in Australia, which the Tribunal disregarded under s.91R(3). However, the Tribunal used the credit finding in that paragraph in a more general sense.
The second ground of review argued at the hearing was the claim that the Tribunal failed to take into consideration evidence in relation to the finding on whether the Applicant was a Catholic.
It was submitted that the question for the Tribunal in this case was whether the Applicant had a well founded fear of persecution on the basis of her religion. It was necessary to find whether the Applicant was a Catholic.
Ms McWilliam submitted that in finding that it was not satisfied that the Applicant was “a Roman Catholic or a Catholic or a Christian”[11] the Tribunal made no reference the Applicant’s oral evidence about her beliefs, corroborative evidence being the Applicant’s Baptism Certificate[12], or the statutory declaration evidence of Xiao Qing Wang[13] and Ji Ping Wang[14].
[11] Court Book 300 at [213]
[12] Court Book 49
[13] Court Book 237 - 239
[14] Court Book 240 - 243
It was submitted that the evidence that the Applicant was a Catholic in the past must inform any assessment of whether to accept a future belief, calling for at least an acknowledgement of what the Applicant and the witnesses had said.
Thus, it was submitted that the Tribunal erred by making a critical finding in a cursory manner without proper consideration of the evidence on that point (Telstra Corporation v ACCC[15]at [106]-[107]). This was a failure to consider evidence relevant to a material issue amounting to a constructive failure to exercise jurisdiction.
[15] [2008] FCA 1785
The third ground argued by counsel for the Applicant is that the Tribunal breached s.425 of the Migration Act by failing to put the Applicant on notice that her claimed Catholicism was an issue and the Tribunal may not accept her as a Catholic. The delegate expressly did not question the Applicant’s Catholic beliefs[16] but found that many Chinese practise Christianity in China without being harmed for religious reasons.
[16] Court Book 165
The Applicant was entitled to attend the hearing in the belief that her Catholicism was not ‘an issue for determination’ (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[17]at [35]).
[17] (2006) 228 CLR 152; [2006] HCA 63
Ms McWilliam submitted that the Tribunal at the hearing asked minimal questions about the Applicant’s Catholic beliefs[18] and did not ask the Applicant to expand on her claim. The Tribunal did not make clear to the Applicant that everything she said was in issue.
[18] Transcript 27 line 45 to 29 line 39
This, it is submitted, was a jurisdictional error that vitiated the Tribunal’s decision.
The First Respondent’s Submissions
Counsel for the First Respondent, the Minister for Immigration and Citizenship, submitted that the Tribunal did not breach the provisions of s.91R(3) of the Act, because the finding complained of concerned the conduct of the Applicant’s daughter and not the Applicant. Ms Wong submitted also that the Tribunal complied with its obligations under s.425 of the Act, by ensuring that the Applicant had an opportunity to give evidence and present arguments with respect to the issues arising in relation to the decision under review.
As to the s.91R(3) issue, Ms Wong submitted that the inconsistency in the Applicant’s evidence that the Tribunal relied on was whether the Applicant’s daughter had attended the church services. Section 91R(3) only requires the Tribunal to disregard conduct by the Applicant.
Further, Ms Wong submitted that the Tribunal accepted the evidence of Father McGee that he could not say that the Applicant’s daughter attended church. The Tribunal found that the Applicant’s daughter had not attended church with her mother, which was a finding that the alleged conduct did not occur. Whilst the Full Court of the Federal Court held in SZJGV[19] at [22] that inaction can constitute conduct within the meaning of s.91R(3), Jessup J explained in SZLDV v Minister for Immigration and Citizenship[20] that inaction will not always constitute conduct for the purpose of s.91R(3) and where nothing has happened this did not require the decision maker always to treat a situation in which nothing has happened as amounting to conduct ‘engaged in by the person’ in question.
[19] supra
[20] [2008] FCA 1211
Thus, it was submitted that the Tribunal’s finding was a determination that nothing had happened and the daughter’s failure to attend church was inaction of a type to which the proscription in s.91R(3) did not apply.
As to the Applicant’s second ground, that the Tribunal had failed to take into account evidence that went to show that the Applicant was a Catholic, counsel for the Minister submitted that, first, there is no obligation to refer to every piece of evidence (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[21] at [46]) and, second, the Tribunal did refer to each of those items of evidence in its reasons for decision, showing that it did consider the contents of this evidence.
[21] (2003) 75 ALD 630; [2003] FCAFC 184
The Tribunal also provided lengthy and comprehensive reasoning for its determination that it did not accept that the Applicant was a Catholic or a Christian[22]. In addition, Ms Wong submitted that the Tribunal provided reasons for its determination that little weight should be attached to the evidence of Mr and Mrs Wang.
[22] Court Book 298 at [205], 300 at [213], 289-296 at [163] – [194]
Thus, it is submitted that the Tribunal considered all of the Applicant’s evidence and rejected all of her claims. The Tribunal did not fail to take relevant considerations into account or constructively fail to exercise its jurisdiction.
As to the Applicant’s third ground, that the Tribunal breached s.425 of the Act by filing to put the Applicant on notice that her Catholicism was an issue and she may not be accepted as a Catholic, Ms Wong submitted that the Tribunal specifically asked the Applicant questions about her claim to be a Catholic, as is shown by the transcript at pages 27 to 28. By specifically asking the Applicant about her claims to be a Catholic and her other alleged religious activities, the Tribunal clearly put the Applicant on notice that the extent of her observance of the Catholic faith was in issue.
Further, it was submitted that the Applicant was put on notice both by the Minister’s delegate and by the Tribunal that everything she said in support of her application was in issue (SZBEL at [47]).
Counsel for the Minister submitted that the decision of the Tribunal was not characterised by jurisdictional error and the application should be dismissed.
Conclusions
The Court is indebted to counsel for both parties for their detailed and helpful submissions.
The Applicant’s first ground is that the Tribunal breached s.91R(3) of the Migration Act by considering evidence of the Applicant’s conduct in Australia is assessing her credibility, which it found must be disregarded. The Minister argues that the Tribunal in fact regarded conduct by the Applicant’s daughter rather than the Applicant. In the alternative it was submitted that the evidence was that the conduct by the daughter did not occur, and it was inaction to which the proscription in s.91R(3) did not apply.
In my view, the Minister’s submission takes too narrow a view of the Tribunal’s reasons at paragraph 191 of the decision. The whole point of the evidence is set out in the first sentence of that paragraph:
A further inconsistency concerned the Applicant’s evidence about her attendance at Sunday services with her daughter.[23]
[23] Court Book 295 at [191]
The evidence is not about whether the daughter attended church at all, but about the Applicant’s claim that she attended church with her daughter. The daughter is not an applicant in these proceedings. In my view, the Tribunal was considering the totality of the Applicant’s evidence about her church attendance, which she said was with her daughter after the first two weeks. As the Full Court of the Federal Court held in SZJGV at [22], Once engaged, s.91R(3) precludes the decision-maker from having regard to “any conduct” engaged in by the Applicant in Australia unless the decision-maker is satisfied that the conduct was engaged in otherwise than for purposes other than strengthening the Applicant’s claim to be a refugee.
In my view, the action or inaction of the daughter in this instance is inextricably connected with the Applicant’s conduct in Australia and cannot realistically be separated from it.
Thus, I am of the view that the Tribunal, when considering this material at paragraph 191 in relation to the Applicant’s credibility, breached the provisions of s.91R(3) and therefore fell into jurisdictional error.
The Applicant’s second ground claims that the Tribunal failed to take into consideration evidence in relation to the finding on whether the Applicant was a Catholic.
The Tribunal is under no obligation to refer to every piece of evidence and every contention made by the Applicant in its reasons for decision (Applicant WAEE at [46]). However, as counsel for the Minister submitted, the Tribunal did indeed consider the Applicant’s oral evidence on this point, at paragraph 104, which begins “The Applicant claimed to be Roman Catholic”[24].
[24] Court Book 271
The Tribunal considered the Applicant’s Baptism certificate, referring to it at paragraphs 59[25], 100 and 101[26].
[25] Court Book 262
[26] Court Book 270-271
The Tribunal specifically referred to the statutory declarations of Xiao Qing Wang and Ji Ping Wang in paragraphs 142[27], 182 and 183[28]. The Tribunal stated that it attached little weight to her statement because she had departed China 11 years before and did not know the Applicant well in China, and also because her information was dated or obtained from others[29].
[27] Court Book 284
[28] Court Book 293
[29] Ibid at [182]
The Tribunal gave similar reasons for attaching little weight to the statement of Ji Ping Wang, who had left China 12 years before.[30]
[30] Ibid at [183]
Again, the Tribunal stated at paragraphs160[31] and 194[32] that it had considered all of the Applicant’s evidence and submissions.
[31] Court Book 289
[32] Court Book 296
I am satisfied that the Tribunal did not fail to take into consideration evidence in relation to the finding on whether the Applicant was a Catholic. Consequently, no jurisdictional evidence is shown and this ground has not been made out.
The Applicant’s third ground claims that the Tribunal fell into error by breaching s.425 in failing to put the Applicant on notice that her claimed Catholicism was an issue.
The delegate specifically refrained from asking the Applicant questions “about Christian theology or Catholicism”[33] when she attended the interview. I do not agree with the Minister’s submission that ‘everything” she said in support of her application was in issue. The delegate accepted that the Applicant may have had “some understanding of Christian theology and practices”[34]. The delegate, however, positively disbelieved that the Applicant was persecuted in China for religious reasons, noting a report from the United Kingdom Home Office that many Christians practice Christianity in the PRC without being harmed for religious reasons.
[33] Court Book 165
[34] Ibid
True it is that the Tribunal that the Tribunal asked the Applicant some questions at the hearing about her claim to be a Catholic (see the affidavit of Sasha Jane Lowes to which a transcript of the hearing has been annexed[35] ). However, there is nothing in the transcript to show that the Tribunal did not accept the Applicant’s evidence about being a Catholic or that it was in any way an issue.
[35] Transcript pp. 27-28
In my view, the Applicant would not have been aware that her Catholicism was an issue. The High Court said in SZBEL[36] at [35] that if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive and does not tell the Applicant what that other issue is, then the Applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.
[36] supra
For that reason, I am of the view that the Tribunal fell into error in that it did not challenge what the applicant said about her Catholicism or say anything to her that would have revealed to her that this was a live issue (SZBEL at [43]). Thus, the Tribunal did not accord the appellant procedural fairness and thereby breached s.425 of the Act. The Tribunal fell into jurisdictional error.
For the two reasons that are set out above the Applicant is entitled to relief because the Tribunal decision is vitiated by jurisdictional error. Orders in the nature of certiorari and mandamus will issue.
The Applicant is legally represented and the Court should consider an order for costs in her favour.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 7 May 2009
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