SZNIL v Minister for Immigration
[2009] FMCA 883
•9 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNIL v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 883 |
| MIGRATION – Review of RRT decision – applicant a citizen of China – where Tribunal found that applicant was not a witness of truth and comprehensively rejected all of her claims – whether Tribunal properly considered corroborative evidence – whether Tribunal should have asked itself “what if I am wrong?” – whether Tribunal obliged to notify the applicant of its reasons for rejecting the written evidence of certain witnesses – where the subject of that evidence was clearly a fact in issue – where Tribunal rejected written statement of witness who claimed to be the President of the (Victorian) Falun Dafa Association – where that witness did not give evidence at the hearing and was not contacted at any other time – whether Tribunal failed to make reasonable enquiries. |
| Migration Act 1958 (Cth), ss.424A, 424B, 425 |
| WAIJ v Minister for Immigration (2004) 80 ALD 568 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration v Rajalingam [1999] FCR 719 Minister for Immigration v SZKTI [2009] HCA 30 SZJQN v Minister for Immigration [2009] FMCA 810 Minister for Immigration v SZNAV [2009] FCAFC 109 |
| Applicant: | SZNIL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 618 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 August 2009 |
| Date of Last Submission: | 21 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 18 February 2008.
A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 618 of 2009
| SZNIL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 21 July 2008 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 12 August 2008. A delegate of the Minister refused to grant a protection visa on 17 October 2008 and on 18 November 2008 the applicant applied for review of the delegate’s decision by the Refugee Review Tribunal. The Tribunal invited the applicant to a hearing, which she attended with her son and her migration agent. Following the hearing on 28 January 2009 the Tribunal wrote to the applicant a letter pursuant to s.424A of the Migration Act 1958 (Cth) (the “Act”). The applicant responded to the letter and provided additional information to the Tribunal. On 18 February 2009 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 19 February 2009.
The applicant’s grounds for claiming that she was a person to whom Australia owed protection obligations arose out of her practise of and adherence to, Falun Gong. In a statement annexed to her protection visa application [CB 27-31] she claimed that she had been introduced to Falun Gong in February 1998 at a time when she claimed to be suffering from coronary heart disease, stomach trouble, haemorrhoids and arthritis. She found that the practice of Falun Gong improved her medical condition both physically and mentally. She recommended the practise to her daughter who was then in France and who had been diagnosed with cancer. The applicant believed that her daughter’s taking up of the movement had brought about her recovery.
The applicant told the delegate that after 20 July 1999 she had practised Falun Gong alone privately at her home until 25 July 2002 when her home was raided by more than 10 officers from Bureau “610”. Her home was searched but no Falun Gong material was found. She was still taken to a detention centre where she was held for 27 days, deprived of sleep and required to sit on a small wooden stool. She said she was beaten, refused to take food and was force fed. After the 27 days her husband paid a fine of 5,000.00 RMB Yuan and obtained her release. The applicant claimed that the release was given to her on the condition that she was not permitted to leave Yantai city for a year. She had still not received her release papers in October 2003 and went to the local PSB Bureau and obtained them. She produced a copy of these papers which were dated 19 August 2003. After this date, the applicant travelled both around China and to see her daughter in Paris and her son in Australia. She claimed that in order to continue her Falun Gong practise she had to change her residence very often and only lived temporarily in any one place. She believed that when she did return home to Yantai she was being followed and watched.
The applicant first travelled to Australia between 20 November 2001 and 16 February 2002. At that time she lived with her son in Chatswood. She did not apply for refugee status in Australia at that time. After receiving her release papers in 2003 she travelled to France to see her daughter. She did not apply for refugee status in France even though she had been persecuted for her Falun Gong activities in China. The applicant returned to Australia on 6 December 2006 and remained here until 4 March 2007. She did not apply for refugee status in Australia at that time. On 14 November 2007 she travelled to France and remained there until 7 February 2008. She did not apply for a protection visa in France. However, she said that during this period she received a telephone call from her husband who told her that after he had returned to their home in Yantai on 1 January 2008 he found that it had been raided by people he thought were the PSB because they appeared to have spread around the home a considerable amount of Falun Gong material and left some of it “as a warning”. The applicant returned to China in February 2008. She said that she was in considerable fear and moved around living out of a suit case. She said that, while she was staying with her sister in Yantai city, plain clothes police came looking for her. Her sister told her and so she made arrangements to return to Australia and to her son. It was then that she decided to seek protection.
At [CB 221] there is an extract from the transcript of the Tribunal hearing. The Tribunal is talking about a “dob-in letter” which is not relevant for the purposes of these proceedings and was ignored by the Tribunal in its grounds and reasons. The Tribunal then says:
“T: … And as I said to you my concern is that you didn’t take the opportunity to apply for a protection visa even though you were in France and Australia before. And I have doubts about the truthfulness of your claim…
Further on, on the same page, the Tribunal says;
“T: … I am obliged to let you know that I have received this letter but my concern is your behaviour and your evidence because I am having a lot of difficulty believing that someone who has a well-founded fear of being persecuted would not apply for refugee status the first opportunity they got, and then wouldn’t apply on the second opportunity or the third opportunity or the fourth opportunity.”
Prior to the hearing the applicant had provided a number of statements to the Tribunal, the most relevant of which is the statement from her son who also gave evidence to the Tribunal. He told that he came to Australia in 1997 and lived in Chatswood. He said that in 1999 his mother posted “Zhuan Falan” from China. That was the first time he knew that his mother was a Falun Gong practitioner. He said that when he returned to China, which was once or twice a year, he practised together with his mother at home because he considered it to be a healthy exercise. He said that his mother had not told him until recently that she had been arrested in 2002. He recalled that the last two occasions on which his mother had visited him in Sydney and Melbourne she had joined public Falun Gong related activities with other practitioners and even protested against the Chinese Consulate-General in Sydney. He said that early in 2008 when he had been in China he received a telephone call from his father but his father would not say to him on the phone what was concerning him. When they met his father told him about the police raid and the loss of the Falun Dafa material. The son told his sister about this and suggested that his mother remain in Paris.
After the hearing the Tribunal received some further documents from the applicant including a statement from Helen San Ling Lee who wrote about the applicant’s Falun Gong activities during her 2001/2002 visit to Australia [CB 183], the further statutory declaration of the applicant’s son [CB 184], a letter from John Xiao, President of the (Victorian) Falun Dafa Association, dated 22 December 2009 (sic) who wrote about the applicant’s Falun Gong activities during her 2006/2007 visit to Australia and a statement of Jun Cao dated 23 December 2008 who wrote about the applicant’s Falun Gong activities during her 2001/2002 visit to Australia [CB 189].
I will not at this stage set out by extraction or by précis the Tribunal’s reasons for concluding that the applicant is not a person to whom Australia owed protection obligations. Suffice to say that the Tribunal concluded that the applicant was not a witness of truth and that she had not been a Falun Gong practitioner in China, had not been persecuted there, had not had to spend much time moving from place to place to avoid further persecution and did not have a well-founded fear that she would be persecuted should she return to China. The major reason for the Tribunal coming to this conclusion was that the Tribunal found it implausible that she would not have applied for protection either in Australia or in France on one of her visits given the continual fear she claimed to have following her arrest in 2002. The applicant filed an application with this Court in 2009 seeking review of the Tribunal’s decision. She moved the Court on an amended application filed in Court on 21 August 2009. The grounds of that application are:
“1. The applicant provided a large amount of corroborative evidence to the Tribunal in support of her claim. The Tribunal fell into jurisdictional error in the manner it dealt with some of the corroborative evidence. Specifically:
i) The Tribunal is bound to have regard to all corroborative material before attempting to reach a conclusion on an applicant’s credibility. The Tribunal failed to do so in the present case.
ii) The Tribunal should have considered, with reference to all corroborative evidence (perhaps other than the evidence excluded from reference by its s 91R(3) finding), the possibility that its findings of fact concerning the applicant’s claims might not have been correct.
iii) The Tribunal dealt with some corroborative evidence in a manner which contravened s 425 of the Migration Act.
2. b) In relation to some of the corroborative evidence provided by the applicant to the Tribunal, it was unreasonable for the Tribunal not to make further enquiries concerning the evidence, such as further enquiries with John Xiao. In the circumstances, the Tribunal fell into jurisdictional error.
3. The Tribunal, in writing a letter to the applicant dated 18 November 2008 (see pages 138-139 of the Court Book), breached s 424B of the Migration Act. Such a breach constituted jurisdictional error.”
Mr Zipser who appeared for the applicant divided these grounds into issues which he called “the corroborative evidence issue”, “the Rajalingam issue”, “the SZBEL issue”, “the further enquiries issue” and “the s.424B issue.” I will deal with each in turn.
The Corroborative Evidence Issue
The applicant argues that the Tribunal cannot make findings of fact about her credit and claims without having regard to the corroborative evidence. She claims that the Tribunal failed to do this in the instant case. The applicant relies on what fell from the Full Bench in WAIJ v Minister for Immigration (2004) 80 ALD 568 (“WAIJ”) which she says is authority for the proposition that where her claims have not been discredited by comprehensive findings of dishonesty and untruthfulness; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“S20/2002”) per McHugh and Gummow JJ at [49], and she provides to the Tribunal material corroborative of her claim, there are two requirements of the process by which the Tribunal deals with the corroborative material.
“(a) The Tribunal is bound to have regard to the corroborative material before “attempting to reach a conclusion on the applicant’s credibility”; per Lee, Moore JJ at [27].
(b) The Tribunal must consider the corroborative material cumulatively before reaching a conclusion on the applicant’s credibility.”
At [165] [CB 279] the Tribunal comprehensively rejects all the applicant’s claims, from those of her being a genuine Falun Gong practitioner, those of her being arrested, detained and tortured, that her house was broken into and searched by the “610” police, to her spending time in hiding until eventually being told by her sister that the police were looking for her and then escaping to Australia. The Tribunal states that the reason for coming to these conclusions is that it does not accept that the applicant was a witness of truth. The Tribunal starts its recitation of the reasons why it came to that conclusion with its concern that the applicant had travelled both to Australia and France and had never made a claim for protection previously. In particular, she made no claim for protection whilst in France in January 2008, just after the alleged raid had taken place.
“[169] The Tribunal also has significant concerns that the applicant had twice visited Australia before her most recent trip here. She had her son here, yet she did not apply for a protection visa. These are not the actions of a person who has a well founded fear of being persecuted in China. The Tribunal finds the applicant’s conduct in returning to China four times, twice from Australia and twice from France, including the last time from France after the claimed break-in during January 2008, is inconsistent with a fear of being persecuted. These significant inconsistencies between her claims and her conduct lead the Tribunal to conclude that the applicant is not telling the truth about being a Falun Gong practitioner. The Tribunal finds that the applicant is not a Falun Gong practitioner.”
At [176] [CB 281] the Tribunal finds:
“… that because of her actions in returning to China on four occasions from Australia and France despite her claimed fear… the Tribunal does not believe any of her evidence or arrest, detention or her claimed Falun Gong beliefs or activities.”
At [177] [CB 281] the Tribunal says:
“The applicant’s conduct in returning to China on several occasions from France and Australia lead the Tribunal to conclude that she is not a Falun Gong practitioner and did not fear returning to China because of her beliefs.”
At [178] [CB 282] the Tribunal says:
“The Tribunal has already found that the applicant is not a Falun Gong practitioner.”
The Tribunal then goes on to dismiss for that reason other parts of the applicant’s history. It then turns to the evidence of the son at [184] [CB 283]:
“The Tribunal has taken into account the evidence of the applicant’ s son. However the Tribunal does not accept his evidence in light of the actions of the applicant. Although he has attended the hearing and gave evidence and provided statements to the Tribunal his evidence does not overcome the significant concerns that the Tribunal has about the truthfulness of the applicant. The Tribunal does not accept Mr Liu’ s evidence that he practised Falun Gong with his mother or that she spoke to him about Falun Gong or that she is a genuine Falun Gong practitioner.”
At [200] [CB 286] the Tribunal turns to the evidence of Ms Helen San Ling Lee:
“On 23 December 2008 the Tribunal received a brief unsworn statement from Helen San Ling Lee who stated that she met the applicant for the first time in Chatswood around December 2001 to February 2002 and they spread flyers and told the truth. Ms Lee stated that she is now living in Hong Kong. She did not state that she gave money to the applicant to make Falun Gong materials. The Tribunal has considered Ms Lee’s statement and the evidence of the applicant that she went to Chinatown and received leaflets that she then distributed in Chatswood. However, the Tribunal does not believe that the applicant is a Falun Gong practitioner and finds that the brief unsworn statement from Helen San Ling Lee does not overcome the significant concerns the Tribunal has about the applicant’s credibility.”
The applicant argues that instead of taking these corroborative statements into account when considering the credibility of the applicant, the Tribunal determined that the applicant was not credible and then for that reason dismissed the statements as not having any corroborative value. Originally the applicant made this claim in respect of several other statements but I am satisfied that in all of those cases the Tribunal provided reasons for dismissing the statements which were not connected with the applicant’s credibility.
Whilst I can quite understand the Tribunal having come to a conclusion from the applicant’s evidence that she did not have a well founded fear of persecution, as otherwise she would not have consistently returned to China, its finding went much further than that to the extent of saying that the applicant was not a Falun Gong practitioner. Sometimes the Tribunal uses the phrase “not a genuine Falun Gong practitioner” and sometimes it uses the phrase “not a Falun Gong practitioner”. There is to my mind a considerable difference between the two. On reflection, I have come to the view that it would be permissible for the Tribunal to conclude that the applicant was not a genuine Falun Gong practitioner without taking into account the evidence of Ms Lee or the applicant’s son. This is because they do not really address the genuineness of what she was doing. They only depose to the fact that she did it. In other words, saying that someone is not a genuine practitioner could allow a situation where the Tribunal accepts that she might have appeared to have been a practitioner of Falun Gong to her son or to Ms Lee. But when the Tribunal says that the applicant was not a practitioner of Falun Gong at all and concludes that as a result none of the things that happened to her in China happened, it must certainly be possible to make an argument of a type put forward by this applicant based upon the views expressed by the High Court in S20/2002 and the Full Bench in WAIJ.
But if one looks at the impugned evidence in greater detail it is possible to see that the Tribunal may have had independent reasons for rejecting it. In the case of the evidence of Ms Helen San Ling Lee the Tribunal notes that the statement was unsworn and did not state that she had given money to the applicant to make Falun Gong materials. That was an important part of the applicant’s claims which Ms Lee did not corroborate. If one looks at [200] [CB 286] it will be seen that the gravamen of the Tribunal’s finding in relation to the statement from Ms Lee is that it does not assist it to “accept the applicant’s evidence that the person who had returned to Hong Kong gave the applicant $10,000.00 to make Falun Gong materials.”
In regard to the evidence of the son the Tribunal states at [184] [CB 283]:
“The Tribunal has taken into account the evidence of the applicant’s son. However, the Tribunal does not accept his evidence in light of the actions of the applicant. Although he attended the hearing and gave evidence and provided statements to the Tribunal his evidence does not overcome the significant concerns that the Tribunal has about the truthfulness of the applicant. The Tribunal does not accept [son’s] evidence that he practised Falun Gong with his mother or that she spoke to him about Falun Gong or that she is a genuine Falun Gong practitioner.”
My reading of this paragraph is that the Tribunal has weighed up the son’s evidence and that of his mother. It is has come to the conclusion that the mother’s evidence is so inherently implausible that it cannot accept the son’s apparent corroboration of it. The Tribunal has not really ignored the son’s evidence, it has come to a conclusion about it. It does not believe the son. I think that the Tribunal is entitled to take this approach with regard to the evidence of such a close relative. Looked at in this way the Tribunal’s decision would not offend the principles laid down by the Full Bench in WAIJ.
The Rajalingam Issue
The applicant argues that having provided some corroborative evidence to the Tribunal it should have either, in respect of individual pieces or in respect of the corroborative evidence as a whole, considered that its findings of fact may not have been correct. Minister for Immigration v Rajalingam [1999] FCR 719 is authority for the following propositions:
“[55]It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution. It is clear that the comment in the joint judgment is not confined to a past event (as in Wu Shan Liang) involving persons other than the applicant. Their Honours give as an example a finding that it was slightly more probable than not that the applicant had not been punished for a Convention reason.
[56] If, on the other hand, it appears that the RRT had no "real doubt" that its findings were correct, it is not bound to consider whether those findings might be wrong. Nothing in the reasoning of the joint judgment suggests that if the RRT, although apparently having no real doubt as to its findings, should have had doubts, it is bound to consider the possibility that the relevant event might have occurred. Doubtless, this is because an objective test of this nature would require the Court to transgress the boundaries of judicial review, by considering the merits of the RRT's decision. The passage does not explicitly address the approach that should be taken by the Court where the RRT does not make it clear whether it had no real doubt about its findings as to past events (or non-events), or whether it made the findings on the bare probabilities.”
I think it will be clear from what has gone before that I take the view that the Tribunal was in no doubt about its findings of credibility in regard to the applicant. Having determined that the dismissal of the corroborative evidence was not infected by the error found in WAIJ and that there were substantive grounds for the non acceptance of all of it I am unable to say that the Tribunal fell into jurisdictional by not considering whether those findings were wrong.
The SZBEL issue
The applicant argues that the Tribunal’s rejection of the evidence given by Mr Chao in part on the basis of “information from the Falun Dafa website in 2000 and 2002 indicating that there were several practice sites in the northern area of Sydney” [CB 201] was a matter that should have been put to the applicant for consideration. At [40] the High Court, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said of SZBEL:
“And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant’s claim to a protection visa they need not. If it had been intended that the Tribunal should consider afresh, in every case all possible issues presented by an applicant’s claim it would not be apt for the Act to describe the Tribunal’s task as conducting a “review” and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review.”
In SZBEL the issue was how the captain of the applicant’s ship came to know of his interest in Christianity. The existence of the knowledge was accepted by the delegate. The High Court found that:
“[n]othing in the delegate’s reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the applicant said. It did not say anything to him that would have revealed to him that these were live issues.”
In the instant case the applicant has not identified an issue that is critical to the analysis of the Tribunal’s obligations under s.425 of the Act. To the extent that there was an issue that Mr Chao’s evidence addressed, it was the issue of whether the applicant was a genuine practitioner of Falun Gong of which her asserted practice in Australia in 2001 was a relevant factor. But that issue was at all times known to the applicant because it was contained in the delegate’s decision [CB 110]. Mr Chao’s evidence was intended to rebut the delegate’s finding. The Tribunal rejected Mr Chao’s evidence because of the independent information that it had obtained concerning practice in North Sydney during the relevant period. It is now clear; Minister for Immigration v SZKTI [2009] HCA 30, that the Tribunal was entitled to obtain this evidence and utilise it in order to make a determination about the issue. That is what the Tribunal did. The issue was known to the applicant, even if the evidence which rebutted that of her witness and went to the issue was not.
The more forcefully argued matter under SZBEL was the finding by the Tribunal that the letter purporting to be from Mr John Xiao was not genuine. In respect of this letter the Tribunal says:
“The applicant then gave evidence that her son moved to Melbourne and she practised at Cook Park with a person called Wang Yu Feng. After the hearing the Tribunal received an unsworn statement addressed “to whom it may concern”. The Tribunal has considered the information in this statement. The writer, John Xiao, claims to be the president of the Falun Dafa Association. The letter is not written on official Falun Dafa letterhead and it is unsworn. As well the letter is dated 22 December 2009 (sic). The Tribunal has already found that the applicant has given to the Tribunal documents that are not genuine. Because of the error on the face of the letter, being a date that has not yet passed, and the statement is not on official letterhead and it is not a sworn statement, and the Tribunal did not have the opportunity at the hearing of testing the evidence of Mr Xiao, the Tribunal does not accept the genuineness of this document. The Tribunal does not accept that the applicant attended Falun Gong activities in Australia on her trip in 2006 to 2007 or that she practised Falun Gong in public or at her home.” [205] [CB 287]
Mr Xiao’s letter is found at [CB 185]. It is addressed to “To whom it may concern”, it has no letterhead, it is signed by Mr Xiao as “President of the Falun Dafa Association” when it would see that at best he would be the President of the Victorian Dafa Association (or the Victorian Branch). The letter is also dated 22 December 2009 when it was sent by fax on 23 December 2008. Although the Tribunal has expressed its views about the genuineness of the letter that genuineness was not “an issue”. The issue was whether or not the applicant had practised Falun Gong in Victoria in February 2007. This was again a matter considered by the delegate when he pointed out that the applicant had not made any claims of practice of Falun Gong in Australia prior to 2008:
“I also note that the applicant previously temporarily resided in Australia in 2001 and 2006 for three months on each visit. However, she made no reference that she engaged in any Falun Gong activities in the past. It is reasonable to expect that the genuine Falun Gong practitioner would seek the opportunity to practice earlier. I conclude that although the applicant visited Australia two times before and spent six months in total her supporting evidence coincides with the lodgement of her protection visa application. Therefore based on the circumstances of the case and the information before me I cannot be satisfied that any Falun Gong activities which the applicant may now be engaged in in Australia have been commenced other than for the purpose of attempting to establish and or strengthen her refugee claims.” [CB 133-134]
The evidence of Mr Xiao was intended to deal with that issue. The evidence itself was not the issue. The Tribunal has given reasons for not accepting the evidence which can be clearly seen from the face of the document. What the Court may think of those reasons would go to the merits of the applicant’s case and the Tribunal decision and not to the Tribunal’s compliance with its statutory duties.
The failure to enquire issue
The applicant argues that in regard to the letter from Mr Xiao all of the Tribunal’s concerns about its genuineness could have been alleviated (or confirmed) after a simple telephone call to the number given. The Tribunal failed to take this step, indeed it remarked that it did not have the opportunity “at the hearing of testing the evidence of Mr Xiao”. This is presumably a criticism of the applicant for not adding Mr Xiao to the list of witnesses. I considered the duty to enquire in SZJQN v Minister for Immigration [2009] FMCA 810 (“SZJQN”) at [14] and [15] where I noted:
“[Mr Karp] relies on the views expressed by Wilcox J in Prasad v Minister for Immigration (1986) 65 ALR 549 at [562]:
“Under s 5(1)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision -- which perhaps in itself, reasonably reflects the material before him -- in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.”
Prasad was a case where a piece of relevant evidence, being an assessment of the relationship of the applicant made by a competent officer, was not considered by the Tribunal. The dicta of Wilcox J in Prasad was considered comprehensively by Kenny J in Minister for Immigration v Le [2007] FCA 1318 and she found at [77]:
“This is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further enquiry before making a decision. At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker’s statements regarding Mr Nguyen’s supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen’s written statement.”
I am satisfied that the views expressed by Wilcox J and Kenny J still remain the law notwithstanding the obiter views expressed by Perram J in SZHUH v Minister for Immigration [2008] FCA 1893 at [11]:
“It is doubtful however whether the principle in Prasad has survived the enactment of s.422B of the Act.”
I found in SZJQN that what was labelled a failure to enquire was in fact a failure by the applicant to ensure that evidence he considered important to his claim was received by the Tribunal. In that case the applicant had nominated the witness as a person he wished to be heard and the Tribunal had made an attempt to telephone him. This is not such a case. The applicant provided the statement. She was not given any indication that the Tribunal had doubts about it although her own credibility was certainly an issue. Whilst I have been prepared to say that the failure to put to the applicant the Tribunal’s concerns about the letter was not a failing of the type identified in SZBEL, I am not as sanguine about this aspect of the matter. In his helpful written submissions, Mr Smith says:
“[26]In the first respect, it is wrong to say as the applicant suggests, that the Tribunal can simply telephone the purported maker of a statement which has been provided to it. In order to obtain any information from a person who has already given information to the Tribunal, the Tribunal must comply with s.424(3) at peril of committing jurisdictional error: SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 and SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407. However, the Tribunal did not have Mr Xiao’s address.”
The High Court has now made it clear that the Tribunal could have obtained this evidence without imperilling itself; SZKTI supra. Whilst it is agreed that the Tribunal did not have Mr Xiao’s address it had the mobile telephone number he purported to respond to. The Tribunal could have used that and if it had received no response it could not have been criticised for coming to the view which it took about the genuineness of the documents. On the other hand if Mr Xiao had answered and satisfied the Tribunal of his bona fides, the Tribunal would have had to consider the evidence.
The respondent, through Mr Smith, goes on to say:
“Secondly, the letter was not critical to the Tribunal’s decision. It noted that the applicant practised a few times in February 2007 in Melbourne and referred to hardship that she and her fellow practitioners faced in China at that time. It also said that Mr Xiao believed that she was a genuine practitioner and that the applicant had called him to explain what difficulties she had faced and that she was applying for refugee status. While it may be whether or not the applicant was a Falun Gong practitioner was relevant to the Tribunal’s decision, it cannot be said that the question of whether or not the applicant practised once or twice in Melbourne and was believed by somebody else to be a genuine practitioner, was so centrally relevant that any reasonable decision-maker would have made enquiries of the purported author of the letter before proceeding to make a decision.”
I would agree that the issue of whether or not the applicant practised once or twice in Melbourne may not have been essential to the Tribunal’s consideration of the claims. But the Tribunal did consider essential a finding as to whether or not the applicant was a “genuine” Falun Gong practitioner. I take the view that Mr Xiao could be considered (on the face of the document) an expert in the field. He was the head of the Victorian Branch of the organisation. His views upon the applicant’s commitment to Falun Gong, having met the applicant, could be important. There is no indication in the decision record that the Tribunal had any other grounds for considering Mr Xiao’s evidence valueless, such as the infrequency of their meeting. Thus aside from the Tribunal’s deep suspicion of the applicant, there was nothing which would have prevented the statement being accepted on its face if Mr Xiao turned out to be the person he said he was. By not contacting Mr Xiao, the Tribunal effectively negated the value of his evidence based upon concerns, uncommunicated to the applicant, which were readily capable of being tested. I think that the initial failure to raise the matter with the applicant, albeit not a jurisdictional error, compounds the failure to enquire and makes it not just a “sounder course” but an unreasonable exercise of power in the Wednesbury sense.
For these reasons, I would grant the applicant the constitutional writs she seeks and order the respondent to pay for costs assessed in the sum of $5,500.00. The s.424B issue has been comprehensively rejected by the Full Bench, Stone, Jacobson and Jagot JJ in Minister for Immigration v SZNAV [2009] FCAFC 109.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 9 September 2009
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