SZNIL v Minister for Immigration & Anor
[2010] FMCA 470
•16 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNIL v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 470 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a Falun Gong practitioner – Tribunal making adverse credibility findings – whether the Tribunal overlooked relevant material considered – applicant claiming to undertake Falun Gong activities on each of her three visits to Australia – Tribunal disregarding the applicant’s conduct since her most recent arrival – whether the Tribunal breached s.91R(3) of the Migration Act 1958 (Cth) considered – Tribunal not disregarding the applicant’s conduct on her second visit to Australia but failing to consider the opinion of the Victorian President of the Falun Dafa Association that at that time the applicant was a genuine and committed practitioner – alternatively, the Tribunal could not have made a decision on the motivation for the applicant’s conduct in Australia with confidence as the applicant’s motivation changed over time – failure by the Tribunal to consider what the position would have been if it had been wrong about the applicant’s motivation – jurisdictional error established. |
| Migration Act 1958 (Cth), ss.91R, 424A |
| Minister for Immigration v Rajalingam (1999) FCR 719 Minister for Immigration v SZJGV (2009) 259 ALR 595 NAOX v Minister for Immigration [2009] FCA 1056 SZNIL v Minister for Immigration & Anor [2009] FMCA 883 SZODR v Minister for Immigration & Anor [2010] FMCA 402 VAAD v Minister for Immigration [2005] FCA 117 |
| Applicant: | SZNIL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 643 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 1 July 2010 |
| Date of Last Submission: | 21 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Ms B Tronson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal made on 26 February 2010.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 643 of 2010
| SZNIL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 26 February 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and made claims of persecution based upon her practice of Falun Gong.
The following statement of background facts is derived from the parties’ submissions.
The applicant is a citizen of the People’s Republic of China (China). Her daughter lives in Paris, France and her son lives in Australia. Each of the applicant’s children has a child. The applicant had visited Paris twice and Australia twice before her arrival in Australia in July 2008 and her subsequent application for a protection visa.
In July 2008 the applicant most recently arrived in Australia (court book (CB) 387[5]). Prior to the applicant’s arrival in Australia, she travelled out of and back to China on a number of occasions as follows:
a)to Australia (in November 2001) and back to China (in February 2002) – CB 387[3];
b)to France (in June 2004) and back to China – CB 389[32];
c)to Australia (in December 2006) and back to China (in March 2007) (CB 387[4]); and
d)to France (in November 2007) and back to China (in February 2008) (CB 389[32]).
In August 2008 the applicant applied for a protection visa in Australia (CB 1-48). The application included an eight page typed statement by the applicant, which appears to be signed by the applicant, setting out her claims (CB 31-38).
In early September 2008 the applicant provided further information to the Department, including:
a)statement of Yaqin Liu (fellow Falun Gong practitioner) dated 27 August 2008 who writes about the applicant’s Falun Gong activities during her current stay in Australia (CB 73);
b)statement of Yue Fang Tao (fellow Falun Gong practitioner) dated 28 August 2008 who writes about the applicant’s Falun Gong activities during her current stay in Australia (CB 74); and
c)statement of applicant’s son, dated 28 August 2008 (CB 87-88).
In September 2008 the applicant attended an interview with an officer of the Minister’s Department (CB 90, 98.3).
In October 2008 a delegate of the Minister made a decision refusing to grant the applicant a protection visa (CB 92-111).
In November 2008 the applicant applied to the Tribunal for review of the delegate’s decision (CB 112-135).
Between November and mid December 2008 the applicant provided further documents to the Tribunal, including:
a)statutory declaration of applicant dated 16 December 2008 (CB 151-154);
b)statement of Yue Fang Tao dated 1 September 2008 which appears to be a second translation of a statement at CB 74 (CB 156); and
c)statutory declaration of Cuiying Zhang (fellow Falun Gong practitioner) dated 24 November 2008 who writes about the applicant’s Falun Gong activities during her current stay in Australia (CB 157).
On 18 December 2008 the applicant appeared at a hearing before the Tribunal and gave evidence (CB 165, 252[67]). The applicant brought a number of witnesses to the hearing who gave evidence, being:
a)the applicant’s son (CB 165, 265[127]);
b)Mai Yung (fellow Falun Gong practitioner) who gave evidence about the applicant’s Falun Gong activities during her current stay in Australia (CB 268[136]);
c)Glen McRae who gave evidence about the applicant’s Falun Gong activities during her current stay in Australia (CB 269[141]); and
d)Li Jiang (fellow Falun Gong practitioner) who gave evidence about the applicant’s Falun Gong activities during her current stay in Australia (CB 269[142]).
Following the hearing the Tribunal received further documents from the applicant, including:
a)statement of Helen San Ling (fellow Falun Gong practitioner) dated 21 December 2008 who writes about the applicant’s Falun Gong activities during her 2001/2002 visit to Australia (CB 183);
b)statutory declaration of the applicant’s son dated 22 December 2008 (CB 184);
c)letter from John Xiao, President of Falun Dafa Association, dated “December 22, 2009” (sic) who writes about the applicant’s Falun Gong activities during her 2006/2007 visit to Australia (CB 185);
d)statement of Jun Cao (fellow Falun Gong practitioner) dated 23 December 2008 who writes about the applicant’s Falun Gong activities during her 2001/2002 visit to Australia (CB 188) (note that there is a second English translation of this statement originally written in Chinese (see CB 212) at CB 211); and
e)statutory declaration of Kelly Kong dated 11 February 2009 (CB 238).
On 28 January 2009 the Tribunal sent a s.424A letter to the applicant (CB 191-193).
On 11 February 2009 the applicant, through her migration agent, replied to the s.424A letter (CB 203-210).
In February 2009 the Tribunal (sometimes referred to below as “the first Tribunal”) made a decision affirming the delegate’s decision not to grant the applicant a protection visa (CB 240-287).
Following an application by the applicant to the Federal Magistrates Court and a hearing in August 2009, in September 2009 the Court (constituted by Raphael FM) made orders quashing the Tribunal’s decision and remitting the matter to the Tribunal for re-determination[1] (CB 288-306).
[1] SZNIL v Minister for Immigration & Anor [2009] FMCA 883
In November and December 2009 the applicant provided further documents to the Tribunal, including:
a)statutory declaration of the applicant dated 13 November 2009 (CB 328-331);
b)statutory declaration of Cuiying Zhang (fellow Falun Gong practitioner) dated 16 November 2009 who writes in detail about the applicant’s Falun Gong activities in Australia since September 2008 (CB 333);
c)statutory declaration of Nancy Chen (fellow Falun Gong practitioner) dated 16 November 2009 who writes about the applicant’s Falun Gong activities in Australia since August 2008 (CB 334);
d)statutory declaration of Hong Zhi Gao (fellow Falun Gong practitioner) dated 10 November 2009 who writes in detail about the applicant’s Falun Gong activities in Australia since August 2008 (CB 335-336);
e)statutory declaration of Wei Huang (fellow Falun Gong practitioner) dated 11 November 2009 who writes about the applicant’s Falun Gong activities in Australia since August 2008 (CB 337);
f)statutory declaration of Lin Zeng (co-ordinator of Falun Gong study and practice groups) dated 8 November 2009 who writes about the applicant’s Falun Gong activities in Australia since September 2008 (CB 338);
g)statutory declaration of Jun Yang (President of Global Victims of Communism Inc) dated 7 November 2009 who writes about the applicant’s involvement with anti Chinese Communist Party activities (CB 339-340);
h)letter from Lucy Zhao on behalf of the Falun Dafa Association NSW Inc dated 2 November 2009 (CB 342);
On 11 December 2009 and 18 December 2009 the applicant appeared at a hearing and gave evidence. (CB 346, 369) The applicant brought a number of witnesses to the hearing who gave evidence, being:
a)the applicant’s son (CB 422-424);
b)Cui Yang Zhang (fellow Falun Gong practitioner) who gave evidence about the applicant’s Falun Gong activities during her current stay in Australia (CB 424[63]);
c)Nancy Chen who gave evidence about the applicant’s Falun Gong activities during her current stay in Australia (CB 424[63]); and
d)Lin Zheng (fellow Falun Gong practitioner) who gave evidence about the applicant’s Falun Gong activities during her current stay in Australia (CB 424[63]).
The application
The proceedings began with a show cause application filed on 24 March 2010. An amended application was filed in court by leave on 1 July 2010. At the conclusion of the hearing, following exchanges in argument between me and counsel for the applicant, it was agreed that a further amended application would be filed which set out the issues which were ultimately pressed by the applicant. That further amended application was filed on 7 July 2010 and contains the following grounds:
1. The applicant provided a large amount of corroborative evidence to the Refugee Review Tribunal (“the Tribunal”). The Tribunal fell into jurisdictional error in the manner in which it dealt with the corroborative evidence. Specifically:
a)The applicant provided to the Tribunal a letter from John [Xiao] (President of Falun Dafa Association) dated 22 December 2008. The letter provides evidence that at the time of the applicant’s visit to Australia in late 2006/early 2007 the applicant was a genuine and practicing Falun Gong practitioner, which was an issue in the proceedings and an integer of the applicant’s claims. The Tribunal overlooked or failed to have regard to this part of the letter, giving rise to jurisdictional error.
b) A number of witnesses stated in writing or orally at a Tribunal hearing that when they first met the applicant in August or September 2008 they considered that she was a “veteran” Falun Gong practitioner. The evidence supports a finding that the applicant practised Falun Gong before her arrival in Australia and is also relevant to the application of s.91R(3) to her conduct in Australia. The Tribunal overlooked or disregarded this evidence, giving rise to jurisdictional error.
2. The Tribunal erred in its construction and/or application of s.91R(3) of the Migration Act. Specifically:
a) The Tribunal did not consider that an applicant for a protection visa may be motivated by multiple purposes to engage in certain conduct in Australia, and whether the applicant’s engagement in Falun Gong activities in Australia was for the sole purpose of strengthening her claim to be a refugee.
b) Section 91R(3) requires the Tribunal to “disregard any conduct engaged in by” the applicant unless the applicant satisfies the Minister that he or she “engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee”. In the present case, each of the applicant’s three visits to Australia involved different “conduct” within the meaning of this term in s.91R(3). The Tribunal appeared to find (at [132]) that the applicant’s conduct in relation to Falun Gong during her second visit in December 2006 to March 2007 (“the Second Visit”) involved a genuine interest in Falun Gong, in which case the Tribunal was then required to have regard to this conduct in considering whether the applicant was entitled to a protection visa. Yet the Tribunal (at [142]) and [146]) disregarded all of the applicant’s conduct in relation to Falun Gong in Australia, including her conduct during the Second Visit. The Tribunal wrongly disregarded the applicant’s conduct in relation to Falun Gong during the Second Visit as a result of a misconstruction or misapplication of s.91R(3).
c) In the alternative to (b), the term “conduct” has a start date and an end date. If the Tribunal considered that the “conduct” in the present case was the applicant’s involvement in Falun Gong activities in Australia during the Second Visit and during her third and current visit (ie conduct with a start date of about February 2007 and an end date of the present), the Tribunal could only disregard the conduct if it was not satisfied that, for the entire period of the conduct, the applicant engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee. In light of the Tribunal’s findings concerning the applicant’s involvement in Falun Gong during the Second Visit (see [132]) and its acceptance of Mr Xiao’s evidence which supported this finding, the Tribunal misunderstood this point and misconstrued or misapplied s.91R(3).
d) In the alternative to (b), if the Tribunal intended to find that it was not satisfied that the applicant engaged in Falun Gong activities in Australia during the Second Visit otherwise than for the purpose of strengthening her claim to be a refugee (despite the fact that the Tribunal made no express finding to this effect at [132]), an important question or “critical fact” (MIAC v SZIAI (2009) 259 ALR 429) at [25]) concerned the purpose of her involvement in Falun Gong activities during the Second Visit. John Xiao (President of Falun Dafa Association) provided a written statement dated 22 December 2008 which suggested that the applicant had a genuine interest in Falun Gong during the Second visit. He could give evidence on the critical fact. Contacting him was simple, and the critical fact could be “easily ascertained” (MIAC v SZIAI at [25]). If the Tribunal wanted or intended to make a finding (whether express or implied) contrary to Mr Xiao’s observations and opinions, the Tribunal ought to have contacted him. Its failure to do so involved “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained”: MIAC V SZIAI at [25].
e) The Tribunal appears to have accepted that the applicant had a genuine interest in Falun Gong in Australia during the Second Visit: see [132]. In considering the application of s.91R(3) to the applicant’s conduct during the third and current visit, important questions are:
i) whether the applicant continued to have a genuine interest in Falun Gong;
ii) if the answer to (i) is “yes”, how this can be reconciled with the Tribunal’s finding that it was “not satisfied that the reason for the applicant’s involvement with Falun Gong activities in Australia has been other than to strengthen her claim to be a refugee”; and
iii) if the answer to (i) is “no”, the point in time at which the applicant’s interest changed from genuine to non-genuine.
The Tribunal failed to address these questions in its reasons for decision. The relevance of the question in 9ii) is that if the Tribunal considered that the applicant continued to have a genuine interest in Falun Gong during her third visit, in circumstances where it is difficult to reconcile this finding with the Tribunal’s finding that it was “not satisfied that the reason for the applicant’s involvement with Falun Gong activities in Australia has been other than to strengthen her claim to be a refugee”, this supports a conclusion that the Tribunal erred in its application or construction of s.91R(3). The relevance of the question in 9iii) is that, unless the Tribunal made a finding as to when the applicant’s interest changed from genuine to non-genuine, the [C]ourt should assume that the applicant’s interest continued to be genuine. These matters support a conclusion that the Tribunal erred in its construction or application of s.91R(3).
The evidence and submissions
I received as evidence the court book filed on 28 April 2010. The applicant’s affidavit filed on 24 March 2010 was not read.
Both parties took the opportunity to make written and oral submissions. In summary, the applicant submits that there is a jurisdictional error in the Tribunal’s decision in one or more of the following ways:
a)The applicant provided to the Tribunal a letter from John Xiao (President of Falun Dafa Association) dated 22 December 2008. The letter provides evidence that at the time of the applicant’s visit to Australia in late 2006/early 2007 the applicant was a genuine and practising Falun Gong practitioner, which was an issue in the proceedings and an integer of the applicant’s claims. The Tribunal overlooked or failed to have regard to this part of the letter, giving rise to jurisdictional error. (“Xiao letter issue”)
b)A number of witnesses stated in writing or orally at a Tribunal hearing that when they first met the applicant in August or September 2008 they considered that she was a “veteran” Falun Gong practitioner. The evidence supports a finding that the applicant practised Falun Gong before her most recent arrival in Australia and is also relevant to the application of s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”) to her conduct in Australia. The Tribunal overlooked or disregarded this evidence, giving rise to jurisdictional error. (“veteran practitioner issue”)
c)The Tribunal erred in its application of s.91R(3) of the Migration Act. Specifically, the Tribunal did not consider:
i)that an applicant for a protection visa may be motivated by multiple purposes to engage in certain conduct in Australia; and
ii)whether the applicant’s engagement in Falun Gong activities in Australia was for the sole purpose of strengthening her claim to be a refugee. (“s.91R(3) issue”)
Further, or in the alternative, the applicant submits that:
a)the Tribunal purported at [142] (CB 441) and [146] (CB 442) to disregard all of the applicant’s conduct in Australia relating to Falun Gong and her conduct on the second visit was wrongly disregarded as the Tribunal appeared to find at [132] (CB 440) that that conduct was genuine;
b)the Tribunal misconstrued or misapplied s.91R(3) in that the section does not permit the Tribunal to reach different conclusions in respect of an applicant’s conduct in Australia in discrete time periods and the section requires that a single conclusion be reached about the motivation for conduct during the entire period of an applicant’s presence in Australia;
c)in considering the applicant’s motivation for her conduct in practising Falun Gong during her second visit to Australia the Tribunal needed to make further enquiries of Mr Xiao before concluding that that conduct was not engaged in otherwise for the purpose than strengthening the applicant’s protection visa claims; or
d)the Tribunal failed to address the correct questions in considering the applicant’s motivation for her Falun Gong activities during her current visit if the Tribunal concluded that the applicant’s motivation for practising Falun Gong on her second visit was a genuine interest because the Tribunal would then have needed to consider whether the applicant continued to have a genuine interest in Falun Gong; if yes, how could the Tribunal find that it was not satisfied that her ongoing activities were for no other reason than to strengthen her claim to be a refugee and if the motivation changed, at what point in time did it change from genuine to non-genuine?
The applicant invites the Court to assume that the applicant’s interest in Falun Gong continued to be genuine in the absence of a finding by the Tribunal that there was a particular point in time at which her motivation changed from one of genuine practice and involvement to solely to enhance her protection visa claims.
The Minister made extensive submissions on the application as amended. These included submissions on the general position on the Tribunal’s duty to consider evidence as follows:
The clear thread running through the authorities referred to in the applicant’s submissions is that this Court should not interfere too readily with a decision made by the second respondent where the grounds for an application for judicial review are based on the manner in which the Refugee Review Tribunal has dealt with the merits or facts of the matter at hand.
This reluctance to interfere also relates to the general principle that the reasons given by administrative bodies are not to be scrutinised in the same way that reasons given by judges may be scrutinised by appellate courts:[2]
[2] Applicant WAEE v Minister for Immigration, (2003) 75 ALD 630, 641 [46].
Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
To similar effect, that the reasons for decision of the second respondent could have been expressed ‘more clearly’[3] is not sufficient to establish jurisdictional error in the way in which the second respondent has dealt with the matter.
[3] Re Minister for Immigration; ex parte S20/2002 (2003) 198 ALR 59, 63 [12] (Gleeson CJ). See also Minister for Immigration v SZNPG [2010] FCAFC 51 [26] (North and Lander JJ); Minister for Immigration v SZNSP [2010] FCAFC 50 [33] (North and Lander JJ).
Ultimately, the cases referred to by the applicant stand for the principle that, in order to constitute jurisdictional error, an alleged failure to consider evidence must amount to a failure to ‘truly … engage with the claim as presented by the visa applicant.’[4] Another way of phrasing this principle is that the alleged failure to consider evidence must have resulted in the second respondent failing to consider an integer of the applicant’s claim.[5]
Importantly, even where the second respondent makes ‘an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence’,[6] this is not sufficient to constitute jurisdictional error. Even where an issue was raised which, ‘if resolved one way, would be dispositive of the [second respondent’s] review of the delegate’s decision’ and that issue was not dealt with expressly in the second respondent’s published reasons, there is no necessary implication that the issue was overlooked by the second respondent – only a possible inference.[7] Jurisdictional error will only be found where it can be said that any error of fact or failure to consider evidence results in a conclusion that the second respondent has not considered the applicant’s claim.[8]
These principles are consistent with the recent High Court decision in Minister for Immigration and Citizenship v SZMDS.[9]
The applicant places considerable reliance on WAIJ v Minister for Immigration, Multicultural and Indigenous Affairs.[10] However, that case must be read in light of more recent decisions[11] which have discussed it, which clearly demonstrate how WAIJ fits in to the general statement of principles above. In particular, in Minister for Immigration and Citizenship v SZNSP,[12] North and Lander JJ held that[13]
it [is] open to the RRT to assess the credit of the first respondent [ie the applicant for a protection visa] and then, in the light of that assessment, consider what weight should be given to [a] witness statement [of a third party].
Their Honours continued:[14]
This was the process followed by the RRT which it described in the sentence ‘Given the adverse credibility finding, the Tribunal does not give weight to the document’. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent [ie the applicant for a protection visa].
[4] SZLGP v Minister for Immigration (2009) 181 FCR 113, 127 [43]; see also Minister for Immigration v SZNPG [2010] FCAFC 51 [27] (North and Lander JJ).
[5] Martinez v Minister for Immigration (2009) 177 FCR 337, 352 [46]; Paul v Minister for Immigration (2001) 113 FCR 396, 423 [79] (Allsop J, with whom Heerey J agreed: 398 [1]).
[6] Minister for Immigration v SZNPG [2010] FCAFC 51 [28] (North and Lander JJ).
[7] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630, 641 [47].
[8] Minister for Immigration v SZNPG [2010] FCAFC 51 [28] (North and Lander JJ).
[9] Minister for Immigration v SZMDS [2010] HCA 16, see especially [132]–[135] (Crennan and Bell JJ); see also Minister for Immigration v SZNSP [2010] FCAFC 50 [51] (Katzmann J).
[10] WAIJ vMinister for Immigration (2004) 80 ALD 568.
[11] Most notably, Minister for Immigration v SZNPG [2010] FCAFC 51 and Minister for Immigration v SZNSP [2010] FCAFC 50.
[12] Minister for Immigration v SZNSP [2010] FCAFC 50.
[13] Minister for Immigration v SZNSP [2010] FCAFC 50 [33] (North and Lander JJ).
[14] Minister for Immigration v SZNSP [2010] FCAFC 50 [33] (North and Lander JJ).
The Minister submits that it is clear from the Tribunal’s reasons that the second Tribunal did consider Mr Xiao’s letter. The Minister further submits that the second Tribunal did consider the evidence of the Sydney witnesses offered to the Tribunal and then made an assessment of the weight to give the evidence of those witnesses and that the Tribunal drew the conclusions it thought appropriate from that evidence. The second Tribunal found, in effect, that the applicant was not a “veteran practitioner” of Falun Gong.
In relation to s.91R(3), the Minister submits that the Tribunal should be taken to have found that the sole purpose for the applicant’s conduct in Australia since her last arrival was to enhance her protection visa claims and that the Tribunal made no error in the application of the section to that conduct. The Minister further submits that it was open to the Tribunal to view the applicant’s conduct on her previous visits to Australia differently and that the Tribunal did so. The Minister submits that it was open to the Tribunal to find that the asserted conduct on the applicant’s first visit did not occur and that the conduct engaged in on the applicant’s second visit was, in effect, to pursue a genuine but limited interest in Falun Gong. However, the conduct on the applicant’s third visit was solely to enhance the applicant’s protection visa claims and that is what the Tribunal found.
The Minister makes the further particular submissions concerning the interpretation of s.91R(3):
In her supplementary submissions, the applicant has engaged in an analysis of the term ‘conduct’ in s 91R(3) of the Migration Act. The Minister generally agrees with the statement in paragraph 6 of the applicant’s supplementary submissions that the application of the term ‘conduct’ in a particular case is a question of fact. The applicant’s arguments in reaching that conclusion are supported by the term ‘the conduct’ in s 91R(3)(b) (emphasis added). The use of the definite article directs a decision-maker’s attention to the particular conduct under consideration (however described or specified) and the applicant’s purpose or purposes in engaging in that conduct.
The Minister further agrees that the scope of ‘the conduct’ may be narrow or broad, and will have a temporal dimension. The particular scope of ‘the conduct’ should be determined by a decision-maker in a given case as appropriate to that case.
Section 91R(3) of the Migration Act is a mandatory provision which requires a decision-maker to disregard facts in certain circumstances, not a permissive provision which allows a decision-maker to disregard facts in certain circumstances. This is a critical distinction: the decision-maker can only breach s 91R(3) of the Migration Act if it takes into account facts which the legislation directs it to disregard. It cannot breach s 91R(3) by overlooking facts which do not fall within the scope of s 91R(3).
This is clear from the wording of the provision itself and from the policy behind the provision. That policy was described by the High Court in Minister for Immigration and Citizenship v SZJGV,[15] and was discussed in some detail during the hearing of this matter. In brief, the object of s 91R(3) ‘is to prevent claimants from gaining an advantage from conduct undertaken in Australia.’[16] The provision ‘is expressed in a way which focuses upon the evidentiary burden that a person has’ in respect of conduct in which the applicant has engaged in Australia.[17] Importantly, there is nothing in the wording of the provision or the legislative purpose behind it which requires a decision-maker to take into account conduct in which the applicant engages in Australia even if the decision-maker is satisfied that the applicant engaged in that conduct for a purpose other than to strengthen his or her claim for a protection visa.
[15] Minister for Immigration v SZJGV (2009) 259 ALR 595. The history of, and policy behind, the provision is discussed generally at [38]–[65] (Crennan and Kiefel JJ). See especially their Honours’ statement at [65] that ‘[i]t is essential that the object of s 91R(3) and the mischief it was intended to remedy be taken into account in construing it’ (footnote omitted).
[16] Minister for Immigration v SZJGV (2009) 259 ALR 595 [62] (Crennan and Kiefel JJ).
[17] Minister for Immigration v SZJGV (2009) 259 ALR 595 [52] (Crennan and Kiefel JJ).
This means that the usual principles apply where the decision-maker purports to disregard conduct due to the application of s 91R(3) of the Migration Act, but where the proper application of s 91R(3) would not require the decision-maker to disregard that conduct. That is, an analysis of whether or not this constitutes jurisdictional error becomes an analysis of whether or not the decision-maker has committed a jurisdictional error by not considering certain evidence. Those principles were discussed at length in the original written submissions of both parties and at the hearing before Driver FM.
Applying those principles, in order to establish jurisdictional error, the applicant must establish that:
i.section 91R(3) of the Migration Act did not require the second Tribunal to disregard the applicant’s conduct in February 2007; and
ii.the second Tribunal did disregard the applicant’s conduct in February 2007; and
iii.the second Tribunal’s action in so disregarding that conduct was such that it failed to consider an integer of the applicant’s claim.[18]
[18] This principle was dealt with extensively in the Minister’s original written submissions in this matter (see particularly [11]–[19]), and also in oral submissions. These supplementary submissions will not further explore the law on this point.
It is clear from the second Tribunal’s reasons for decision that the second Tribunal did not fail to consider an integer of the applicant’s claim. The applicant’s evidence as to her conduct in February 2007 was part of a general narrative about her involvement in Falun Gong. That was, in essence, as follows:
i.the applicant claimed to have been involved in Falun Gong in China since 1997;
ii.the applicant claimed that, consistent with that claimed involvement, she had been involved in Falun Gong during her visit to Australia in 2001–2002;
iii.the applicant claimed that, consistent with her claimed involvement in Falun Gong in China, she had been involved in Falun Gong during her visit to Australia in 2006–2007;
iv.the applicant claimed that she continued to be involved in Falun Gong in China between her visit to Australia in 2006–2007 and her last arrival in Australia in July 2008; and
v.the applicant claimed that she continued to be involved in Falun Gong in Australia since July or August 2008.
The second Tribunal clearly rejected the applicant’s claims as described in paragraphs (i), (ii), (iv) and (v). The second Tribunal accepted that the applicant had been involved in Falun Gong activities to some extent during her visit to Australia in 2006–2007, but only to the extent that she had the purpose of ‘learning about’ Falun Gong.
This was the basis for the second Tribunal’s finding that the applicant was not a genuine Falun Gong practitioner.[19]
The applicant’s claim in (iii) with respect to her activities simply cannot stand alone as an integer or an issue in her claim, even though it was accepted to some extent by the second Tribunal. At each stage of her application and the proceedings which have followed, she has clearly linked her involvement with the activities in which the applicant engaged while in Australia in February 2007 with her claimed involvement in Falun Gong at other times, particularly in China. The second Tribunal found that the applicant was never involved in Falun Gong in China. The second Tribunal’s finding that the applicant engaged in the relevant conduct in February 2007 to ‘learn about Falun Gong’ is entirely consistent with its finding that the applicant was never involved in Falun Gong in China.
It is thus simply not correct to say that the second Tribunal has not engaged with each integer of the applicant’s claim, even if it has disregarded the applicant’s conduct in February 2007 in circumstances where it was not required to disregard that conduct. (original emphasis retained)
[19] Reasons for decision of the second Tribunal: Court Book 441 [141]–[142]. That this finding involves a finding that the applicant was not a genuine practitioner of Falun Gong is supported by the statement of Crennan and Kiefel JJ in Minister for Immigration v SZJGV (2009) 259 ALR 595 that ‘if the decision-maker is not satisfied by the explanation given for the conduct, the decision-maker will have determined that the person’s only motive was the strengthening of the person’s claim’: [61].
The Minister submits that the second Tribunal’s reasons for decision reveal that the second Tribunal did not in fact disregard the applicant’s conduct in February 2007. On the other hand, the Tribunal did disregard the applicant’s conduct in Australia in respect of her involvement in Falun Gong since July or August 2008.
The Minister further submits that the applicant’s conduct in February 2007 was not an integer of her claims. Her claims were that she had been involved with Falun Gong in China and Australia since 1997. The assertions in relation to her conduct in February 2008 were simply particular facts relating to those claims. The Minister submits that even if the second Tribunal should have made clear and distinct findings of fact in respect of the applicant’s purpose or purposes for discrete “conducts” in which she was engaged, and even if it can be said that the second Tribunal did not do so, this is not enough to establish jurisdictional error. The Minister further submits that any failure to enquire further of Mr Xiao in relation to the applicant’s conduct in February 2007 cannot constitute a failure to deal with a distinct integer of the applicant’s claim.
Finally, the Minister submits that the second Tribunal’s finding that the applicant was not a genuine practitioner of Falun Gong and had no purpose in engaging in Falun Gong activities since August 2008 except to strengthen her claim for a protection visa was not inconsistent with its finding in relation to her involvement with Falun Gong in February 2007 and that the reasoning overall is not irrational or illogical in a sense established by the High Court in Minister for Immigration v SZMDS[20]. The Minister submits that a logical or rational decision maker could clearly have decided not only that the applicant had a different purpose for engaging in Falun Gong activities in February 2007 compared to her purpose for engaging in those activities from August 2008 onwards, but also that a logical or rational decision maker could clearly have come to the same overall conclusion as the Tribunal, that is, that the applicant was not eligible for a protection visa.
Consideration
[20] (2010) 266 ALR 367 at 135
Did the Tribunal misinterpret or misapply s.91R(3)?
The High Court dealt with the interpretation of s.91R(3) in SZJGV. French CJ and Bell J dealt with the construction of the subsection in the following terms at [5]-[13]:
The construction of s 91R(3) begins with the ordinary and grammatical sense of the words having regard to their context and legislative purpose. That purpose in this case, as shown in the reasons of Crennan and Kiefel JJ, was to overcome the effects of decisions of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Mohammed and Minister for Immigration and Multicultural Affairs v Farahanipour. Those decisions concerned cases in which the applicant for a protection visa had deliberately engaged in conduct within Australia calculated to strengthen his claim for protection under the Refugees Convention by enhancing the risk of persecution if he were to be returned to his country of origin. In each case the Full Court held that although such bad faith conduct might well lead to adverse findings about an applicant's credibility, it did not automatically bar the claim for a visa which would have to be assessed by reference to Australia's obligations under the Refugees Convention.
Section 91R is concerned with the application of the criteria in Art 1A(2) of the Refugees Convention to determining whether a person is a refugee within the meaning of that Article and to whom Australia owes "protection obligations" within the meaning of s 36 of the Migration Act. The first two sub-sections of s 91R are closely related. Section 91R(1) limits the range of circumstances in which apprehended harm will be characterised as persecution for the purposes of Art 1A(2). Section 91R(1)(b) requires that such persecution involve serious harm to the person and s 91R(2) sets out a non-exhaustive list of instances of serious harm.
Section 91R(3) stands apart from the two preceding sub-sections. Unlike them, it does not define limits to be applied, for statutory purposes, to the criteria in Art 1A(2). Rather it operates as an awkwardly framed command to the world by the use of "disregard" in an imperative sense. Section 91S, which concerns "membership of a particular social group" as an occasion of apprehended persecution in Art 1A(2), is drafted along similar lines. The command in s 91R(3) is clearly directed, although not expressly, to the Minister (and therefore to the Minister's delegates) determining applications for protection visas and to the Tribunal in reviewing such decisions. It is in its character as a command to administrative decision-makers that it must be construed. It is not directed to the courts, for the courts are not involved in determining such cases on their merits. But a court, upon judicial review, may be required to determine whether the command, where applicable, has been applied in accordance with its terms properly construed.
…
The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2). Neither that purpose nor Australia's protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant's credibility.
…
The proposition that s 91R(3) is concerned with the process of determination after the primary facts have been found does not meet the textual difficulty generated by the ordinary meaning of the word "whether". However, the Solicitor-General's submission does lead to consideration of an alternative construction, which is to read "whether" as "that": not introducing alternatives, but indicating only processes of reasoning leading to a favourable determination. The usage is awkward and probably reflects a misuse of the term "whether" in par (a). But such misuse is not entirely without precedent. In this case, the substituted text corrects what would be an obvious drafting error were "whether" to be construed according to its ordinary and natural meaning. On the alternative construction, par (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in par (b) is satisfied with respect to the relevant conduct. We consider that to be the correct construction. It meets the purpose of the sub-section and avoids absurd results. Upon that construction the appeals must be allowed.
As to what is necessary to satisfy the condition in par (b), we agree with Crennan and Kiefel JJ that an applicant seeking to rely upon conduct engaged in in Australia must show that the conduct was not engaged in solely to strengthen his or her claim. By way of example, conduct in Australia may reflect a continued commitment by the applicant to religious practices followed or political opinions held and expressed in his or her country of origin. It could not be said to have been engaged in solely to strengthen the claim to be a refugee. It might then be relied upon by a decision-maker to infer prior commitment to a particular religious practice or political opinion in the country of origin. (footnotes omitted)
At [50]-[51] Crennan and Kiefel JJ added:
There can be little doubt that s 91R(3) was inserted into the Act to quell the controversy which had arisen by reason of decisions of the Federal Court and that the view expressed in Somaghi was to prevail. The section effects an evidentiary exclusion, which Gummow J had suggested in Somaghi as an appropriate response to deliberate conduct. However his Honour spoke of excluding from the consideration of a decision-maker actions undertaken for the sole purpose of invoking, which is to say creating, a claim to refugee status. When his Honour said that such actions "should not be considered as supporting an application for refugee status" his Honour was speaking of the actions providing the sole evidentiary basis for a claim. The terms of s 91R(3) are expressed differently. They refer to an exclusion of evidence of conduct, the purpose of which is to strengthen a person's claim to a well-founded fear of persecution.
The Full Court was aware of the historical background to s 91R(3), but concentrated upon its language in determining the extent of its operation. The Court considered it to be of significance to the question of the extent of the sub-section's operation, that its terms extended its application beyond sur place claims, strictly so called. It may be accepted that the section extends to any claim for refugee status, where conduct has been engaged in by a person in Australia and is relied upon in support of that claim. It is not limited to cases in which the conduct in question is undertaken to create the circumstances in which Convention protection might be engaged. However it does not follow that the section operates in the manner suggested by the Full Court, so as to prevent the application of evidence of conduct, or views about that conduct, adverse to the claim. (footnotes omitted)
Their Honours also said at [58]-[61]:
The proviso, in par (b) of s 91R(3), is not expressed to except from the statutory direction conduct of a particular kind. Rather, it qualifies the conduct which may be excepted from the operation of sub-s (3) by reference to the person's motive. If a person is able to satisfy the decision-maker that the conduct was engaged in for some reason other than to strengthen the person's claim, the decision-maker may have regard to it. The conduct which the decision-maker is able to take into account is that engaged in "otherwise" than for that purpose or motive.
In considering the operation of the proviso in par (b) it is necessary to bear in mind that "the purpose" spoken of is a singular purpose. It is the purpose of strengthening the claim. Sub-section (3) is concerned with conduct which is engaged in for that purpose alone. This meaning accords with the statement by Gummow J in Somaghi, that conduct which has as its sole purpose the creation of a claim to a well-founded fear of persecution, should not be taken into account. It is confirmed by references in the Explanatory Memorandum to a person having a "specific intention" and in the Second Reading Speech, to actions undertaken "just" or "purely" to strengthen claims to protection, as being the concern of sub-s (3)[61].
It follows that where it is accepted that a person had more than one reason for engaging in the conduct they will satisfy the requirement of the proviso. Such a situation may arise, for example, where a person satisfies the decision-maker that conduct was undertaken in Australia in order to continue the practice of their religion. It will usually follow in such a circumstance that the person's claim will be strengthened by their engagement in that conduct. In many such cases the person will be conscious of that effect when engaging in the conduct. It could then be said that a reason for the person's conduct is to strengthen their claim, although it is not the only reason. But because it was not the sole reason for the conduct, the conduct may be taken into account.
Paragraph (b) of sub-s (3) is not expressed in terms which require a decision-maker to state a conclusion as to the person's motive or motives, only whether the decision-maker is satisfied that the person had a motive for the conduct in addition to that to strengthen the claim. Regardless of the conclusion stated, because the person's sole purpose is the point of reference, the decision-maker will necessarily determine whether the person had only one motive, that to which par (b) refers. And if the decision-maker is not satisfied by the explanation given for the conduct, the decision-maker will have determined that the person's only motive was the strengthening of the person's claim. (footnotes omitted)
It follows from the High Court’s decision that, before reaching a conclusion on the application of s.91R(3), the Tribunal must make factual findings relating to the conduct that may or may not fall within the purview of the section[21]. Then, it must consider the motivation for that conduct. The Tribunal must apply a sole purpose test in considering that motivation. However, the Tribunal may categorise conduct in a number of ways. For example, there may be a temporal factor so as to divide conduct between conduct engaged in before an applicant applies for a protection visa, and conduct engaged in after the application is made. It is arguable that a person cannot display bad faith in relation to an application for protection until the application is made. In my opinion, the better view is that a person may, in bad faith, plan a protection claim before making it.
[21] As was noted by Raphael FM in SZOIW v Minister for Immigration [2010] FMCA 568 at [16] those factual findings must be made in the context of a chain of reasoning leading (at least hypothetically) to a determination in favour of the applicant. I do not accept, however, that the decision of the High Court in SZJGV at [12] requires a decision by the Tribunal that it would make a favourable decision based upon the applicant’s conduct in Australia if that conduct were taken into account. All that is required is a chain of reasoning tending in that direction, which may be implied rather than expressed explicitly.
It may reasonably be supposed that it would be an unusual circumstance for an applicant to engage in conduct in Australia prior to making a protection visa application for the sole purpose of strengthening a hypothetical future protection visa application. In other words, it may be difficult for the Tribunal to conclude that an applicant’s motivation for conduct was solely to strengthen a protection visa claim which had not yet been made. On the other hand, the Tribunal may be able to more readily conclude that similar conduct engaged in after a protection visa application is made was engaged in for the sole purpose of strengthening the application. Further, there may be a qualitative difference in the conduct which may justify different conclusions in relation to similar or related conduct. For example, an applicant may be a genuine Falun Gong practitioner and may engage in the practice of Falun Gong for a purpose otherwise than to strengthen protection visa claims, but may engage in demonstrations and protests relating to Falun Gong for the sole purpose of strengthening protection visa claims. While such a distinction may be difficult to draw, it is not, in theory, impossible.
In the present case, there were temporal and qualitative distinctions between the conduct concerning the applicant’s involvement with Falun Gong. The Tribunal relevantly stated at [124]-[142] of its reasons[22]:
[22] CB 438-441.
The applicant has made claims about her conduct in Australia.
The applicant arrived in Australia on 21 November 2001 and departed Australia on 16 February 2002. The applicant claimed that during this time she and her husband lived with their son in Chatswood, a northern suburb of Sydney. The applicant claimed that during this time her daughter who was living in France visited them. The applicant claimed that from December 2001 to February 2002 she went to Chinatown by train to collect Falun Gong material which she distributed at Chatswood railway station. The applicant claimed she did not practice Falun Gong with other practitioners at a practice site, she practiced at home as the practice centre was too far away.
The applicant submitted to the previous Tribunal a statutory declaration from Kelly Kong who stated that she was the local Falun Gong assistant for Chatswood practising site. She stated that the practice site was located at Beauchamp Park and the practice time was 7am -9am daily. She stated that many practitioners participated in projects to stop the persecution of Falun Gong in China. She stated that from 2001 to 2002 most local practitioners practised at home due to limited time caused by the many activities they needed to participate in. Kelly Kong does not state she knew the applicant. The Tribunal accepts that some Falun Gong practitioners may have chosen to practice at home but notes that there was a practice site in the same suburb where the applicant lived which had daily sessions which suggests that there were other practitioners who chose to practice at the practice site.
The applicant submitted an unsworn statement from Jun Chao. He stated that the applicant always came to pick up Falun Gong flyers from Chinatown from December 2001 to February 2002 and distributed them in the Chatswood area. He also stated that there were only a few practitioners around the north area and basically they all practice at home. Jun Cao’s statement that there were only a few practitioners around the north area is not consistent with the information before the Tribunal that it obtained from saved information from the Falun Dafa Australian website. The website indicates that there were many practice sites in a number of northern suburbs of Sydney in addition to the practice site at Chatswood and that all had daily sessions. The Tribunal places little weight on Jun Chao’s unsworn statement that the applicant picked up Falun Gong flyers from Chinatown in December 2001 to February 2002 and distributed them in the Chatswood area given his statement that there were only a few practitioners around the north area is not consistent with the information from the Falun Dafa Australian website.
The applicant submitted a faxed statement from Helen San Ling Lee. It states that she met the applicant around December 2001 to February 2002 and they spread flyers to people. The statement is vague and provides no specific details as to how she met the applicant where in Chatswood she met the applicant or when, where or how often they spread flyers to people. Helen states that she is living in Hong Kong. At the hearing the applicant’s evidence about Helen was also vague. She did not know when Helen had moved to Hong Kong. She claimed that she just rang the number that had been given to her because she needed evidence that she had distributed material. There is a telephone number provided on the statement but no address or area code. The Tribunal is unable to determine from an independent source the ownership of the telephone number and in view of the Tribunal’s concerns as to the applicant’s credibility the Tribunal did not conduct further inquiries. Given the vague details in this statement the Tribunal places little weight on it.
The applicant’s son provided evidence to the Tribunal about his mothers claim that he took her to Chinatown to collect Falun Gong material. When the Tribunal asked him where in Chinatown he took his mother he claimed he couldn’t remember as it was too long ago. He then claimed Dixon Street or Sussex Street. When the Tribunal asked him how often he took his mother to Chinatown he claimed he couldn’t remember, he then claimed a “few times”. Given the applicant’s son evidence is so vague the Tribunal places little weight on it.
The Tribunal has considered the explanations the applicant has provided as to why she did not practice Falun Gong with other practitioners at a practice site in the three months she was living in Sydney from November 2001 to February 2002. The Tribunal is of the view that if the applicant had been a Falun Gong practitioner in China she would have taken the opportunity to practice with other practitioners given she was unable to do so in China. The Tribunal does not accept the applicant’s explanation that the practice site was too far from her home as there was a practice site in the suburb where she lived as well as one at Darling Harbour just a few minutes from China town where she claimed she travelled to every Saturday by train. The Tribunal does not accept the applicant’s explanation that not many people practised at practice sites at that time as the information from the Falun Dafa Australian website indicates that there were numerous practice sites that all had daily sessions. The Tribunal does not accept the applicant collected Falun Gong material from Chinatown from December 2001 to February 2002 and distributed the material at Chatswood railway station. The Tribunal accepts that the applicant travelled to Canberra in 2001/2002. The applicant claimed that they went to Canberra by tour bus for one day because her son had never been to the capital of Australia. The Tribunal is of the view that the applicant’s trip to Canberra was not for any reason connected with Falun Gong.
The applicant lived in Australia during the period 7 December 2006 - 4 March 2007. The applicant claimed she was living in Toowoomba and in Melbourne. When the applicant was living in Toowoomba her son travelled to China on business. When her son returned from his business trip they moved to Melbourne. The applicant claimed she couldn’t remember exactly when they lived in Melbourne but thought it was about one month. When the applicant was living in Melbourne she claimed she went to the library “to learn about the Falun Gong philosophy”. The applicant claimed she went to the library 3 or 4 times. The applicant claimed she also went to “a few” practice classes.
The applicant submitted a statement from John Xiao President of the Victorian Falun Dafa Association. He states that the applicant came to a group reading of Falun Dafa books a couple of times in February and also went to a practice site a few times. The Tribunal accepts that the applicant went to a group reading of Falun Dafa books a couple of times in February 2007 and also went to a practice site a few times. The Tribunal is of the view that the applicant went to the library and the practice classes to learn about Falun Gong.
The applicant arrived in Australia on 21 July 2008. The applicant claims on 5 August she went to the office of the Epoch Times. The applicant claims on 6 August 2008 she went to a practice site in Kogarah and a meeting in the night. The applicant claims on 7 August 2008 she went to the Sydney Supreme court to protest. The applicant claims on 10August 2008 she joined Falun Gong practice in Darling Harbour and protested about organ harvesting. The applicant lodged her protection visa application on 12 August 2008. The Tribunal is of the view that these activities just two weeks after her arrival in Australia and just before the lodgement of her protection visa application indicates to the Tribunal that the applicant was engaged in this conduct for the purpose of strengthening her claim to be a refugee.
The applicant claims that she has continued to practise Falun Gong near the Supreme Court, Domain Park, Darling Harbour, and in front of the Chinese Consulate. The applicant claims she has attended group study at classes at Kogarah and Burwood. The applicant claims she has told the truth about Falun Gong in public places such as Parramatta, Eastwood, Darling Harbour, NSW University and the Opera House. The applicant claims Chinese spies have taken pictures of her.
The applicant has submitted to this Tribunal and the previous Tribunal a large quantity of documentary evidence to support her claims about her Falun Gong practice and activities in Australia. The applicant has submitted five statutory declarations from Falun Gong practitioners to the presently constituted Tribunal and a letter from Lucy Zhao Falun Dafa Association N.S.W. The applicant submitted statements and a statutory declaration to the previously constituted Tribunal.
Three witnesses attended the hearing of the presently constituted Tribunal and three witnesses attended the hearing of the previously constituted Tribunal and provided evidence that the applicant has been involved in Falun Gong activities study groups and protests in since August 2008.
The applicant has submitted photographs of herself participating in Falun Gong activities in Australia.
The applicant submitted a copy of the Epoch Times dated 15 July 2009 and a copy of the Epoch Times dated 22 July 2009. There are photographs of the applicant along with other people attending a protest.
The applicant has taken into account the information in the statements and the statutory declarations and the evidence of the witnesses. The Tribunal accepts their evidence that the applicant has been involved in Falun Gong activities study groups and protests in Australia since August 2008. The Tribunal accepts that they believe that the applicant is a genuine Falun Gong practitioner.
The Tribunal informed the applicant at the hearing that Section 91R(3) provides that in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that she engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee.
The Tribunal has found that the applicant is not a witness of truth and that she was not a Falun Gong practitioner in China. The evidence from the Falun Gong practitioners who the applicant has met in Australia are not sufficient to overcome the adverse findings the Tribunal has made about the applicant’s credibility.
Having regard to the evidence provided by the applicant the Tribunal is not satisfied that the reason for the applicant’s involvement with Falun Gong activities in Australia has been other than to strengthen her claim to be a refugee and consistent with the provisions of s.91R(3) the Tribunal has disregarded the applicant’s conduct in Australia in reaching its decision.
The Tribunal did not accept at [130] (CB 440) that the conduct asserted on the applicant’s first visit to Australia occurred at all in relation to Falun Gong. The Tribunal accepted that the conduct on the applicant’s second visit to Australia did occur and was for the purpose of pursuing the applicant’s interest in Falun Gong at [132]. It was only on the applicant’s third visit to Australia that she applied for a protection visa and engaged in extensive Falun Gong activities, including demonstrations and protests. The Tribunal was not satisfied at [142] (CB 441) that she engaged in that conduct for any reason other than for the purpose of strengthening her protection visa claims and disregarded it as required by s.91R(3). I find that it was only the conduct engaged in by the applicant on her third visit to Australia which was disregarded. In my view, while the Tribunal could have made its finding pursuant to s.91R(3) clearer, no other interpretation of the Tribunal’s reasons is reasonably open.
I conclude that the Tribunal did not err in its interpretation or application of s.91R(3). It follows that I reject ground 2 in the application.
Did the Tribunal err in its consideration of the corroborative evidence?
The other ground in the application involves assertions that the Tribunal fell into error by overlooking relevant material, namely part of the letter from Mr Xiao dated 22 December 2008 and the evidence of several witnesses given orally to the Tribunal that they regarded the applicant as a “veteran” practitioner. That evidence, it is said, bears particularly on the question of whether the applicant had practised Falun Gong in China or on her first visit to Australia, and also her motivation for her conduct in Australia.
The letter from Mr Xiao is reproduced at CB 185. The parties agree that the date of the letter contains a typographical error and that the date of the letter was intended to be 22 December 2008. The letter reads:
To WHOM IT MAY CONCERN
This letter is to state that [the applicant] came to our group reading of Falun Dafa books a couple of times during February 2007. She and her husband also went to the practice sit a few times and did the Falun Gong exercises together with other Falun Gong practitioners in Melbourne while they were here on a visitor’s visa.
During participation in our group reading of Falun Dafa books, [the applicant] also read her letter of thanks to Melbourne Falun Dafa practitioners for giving them the opportunity of knowing practitioners outside mainland China. I remember vividly that she expressed in her letter that they will go back to China to continue their cultivation despite the harsh conditions other fellow practitioners in China face daily under the Communist regime’s persecution. From her letter, I could feel most sincerely that [the applicant] and her husband are genuine Falun Gong practitioners.
A few days ago she called me from Sydney explaining why she has to apply for refugee status and all the life threatening challenges and difficulties she has to face this time. I fully believe what she told me because her description of what has happened around China’s Olympics is very much the same as what Falun Gong practitioners around the world know. There is quite some media coverage of how the Chinese regime stepped up their persecution in the lead up to the Olympics and how they began large scale arrests after the games. From the phone conversation, I also feel the danger of her life if she was sent back to [C]hina.
Therefore, on behalf of Falun Dafa Association of Victoria, I would like to state that I fully believe her as a genuine Falun Dafa practitioner.
Sincerely yours,
John Xiao, President of Falun Dafa Association
Mobile: …
December 22, [2008]
The letter told the Tribunal a number of things. First, it told the Tribunal that the President of the Falun Dafa Association in Victoria was aware that the applicant had practised Falun Gong during her second visit to Australia and had been accepted by him as a genuine practitioner at that time. The letter also told the Tribunal that Mr Xiao believed that the applicant remained a genuine practitioner at the time of her third and final visit to Australia and that if she returned to China, she would continue her Falun Gong activities and would face difficulties there as a result. The letter did not corroborate the applicant’s claims to have been a Falun Gong practitioner in China or on her first visit to Australia.
In SZNIL v Minister for Immigration[23] at [20]-[22], Raphael FM dealt with the manner in which the first Tribunal had disposed of the letter from Mr Xiao:
[23] [2009] FMCA 883
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[24].
[24] There was no appeal against his Honour’s judgment.
In the present case the Tribunal accepted that the letter from Mr Xiao was genuine. However, the Tribunal still minimised the impact of the letter by dealing only with the facts corroborated by Mr Xiao and not with his opinion concerning the genuineness of the applicant’s commitment to Falun Gong. As President of the Falun Dafa Association in Victoria, Mr Xiao was in a position to express an opinion carrying some weight. Having personally observed the applicant, his opinion would have been of value to the Tribunal. Raphael FM was critical of the Tribunal for not contacting Mr Xiao to verify his letter and thus negate the value of his evidence. In the light of that decision, the Tribunal acted at its peril by seeking to overcome the decision by accepting Mr Xiao’s letter as genuine but limiting its use to the corroboration of a few basic facts and ignoring Mr Xiao’s opinion as the Victorian President of the Falun Dafa Association.
I considered the issue of the jurisdictional effect of overlooking evidence in SZODR v Minister for Immigration[25] at [65]-[66]. I referred in that decision to the Full Federal Court decision in VAAD v Minister for Immigration[26] at [77]-[79] where the Court said:
[25] [2010] FMCA 402
[26] [2005] FCAFC 117
These comments make clear that whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider a document, the UNP Letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40, where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’. The failure to do so led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first appellant’s credibility. The Tribunal failed to have regard to material evidence and, as the Tribunal’s own comments show, that initial error was not corrected by the Tribunal’s subsequent consideration of the UNP Letter and the UNP Translation. On the contrary, the initial error tainted the later consideration of this evidence and compounded the Tribunal’s error. The Tribunal’s conclusion that the UNP Letter was fabricated was greatly influenced by the Tribunal’s mistake in thinking that the UNP Letter had not been provided to the Delegate or been sent to the Tribunal only after the Tribunal’s letter of 5 September 2001, the s 424A letter. The fact that, as originally provided, the UNP Letter was in Singhalese language and no translation was provided does not alter the fact that the Tribunal erred. Nor does it detract from the significance of the Tribunal’s error; see X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 at [52]- [53].
It may well be that, had the error not occurred, the Tribunal would still have rejected the first appellant’s claim to have been preselected as a candidate for the UNP. It is clear that the Tribunal’s assessment of the first and second appellants’ credibility was also based on other factors. The Tribunal found that the first and second appellants had ‘embarked upon an elaborate process of fabricating evidence’ to support their claims. The Federal Magistrate referred to the Tribunal’s assessment of the first appellant at [23] of his reasons:
‘The presiding member had numerous serious credibility concerns about the applicant’s wife’s claims. In particular, the presiding member formed the view that the applicant wife had fabricated claims of threats from the [JVP] ...that it would harm the applicant. In addition the presiding member found the applicant wife to be an unimpressive witness who did not display the knowledge of the UNP that she would expect from a UNP member with a high political profile.’
However, an assessment of credibility is not necessarily linear. It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine. If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka. As Gleeson CJ commented in Aala at [4]:
‘...Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive...’
Kirby J expressed a similar view in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 (‘NAFF v MIMIA’) at [81]:
‘...[D]ecision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.’
While it is impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different if the error about the UNP Letter had not been made, or had been corrected, it is not possible to say that the error could not have affected the outcome.
The Tribunal was required to have regard to all relevant material corroborative of the applicant’s claims and all relevant material bearing upon the issue of credibility, because the applicant’s credibility was central to the outcome. The opinion of Mr Xiao corroborated the applicant’s claims of being a Falun Gong practitioner at the time of her second visit to Australia and of being genuine in that practice. Her expressed intention at that time to continue her practice if she returned to China (referred to by Mr Xiao) bore on the question of whether her later application for a protection visa was made in good faith.
In my view the Tribunal fell into error by overlooking the opinion of Mr Xiao that the applicant was a genuine and committed Falun Gong practitioner at the time of her second visit to Australia. That opinion bore on the applicant’s credibility which was central to the outcome of the review. Further, Mr Xiao’s opinion bore on the Tribunal’s assessment of the motivation for the applicant’s purpose in her conduct on her third visit to Australia. If she was a genuine and committed practitioner in 2007, did her conduct on her third visit in 2008 really have the sole purpose of enhancing the protection visa claims the applicant then made? The opinion of Mr Xiao was of such central significance that the Tribunal’s silence about it in its reasons satisfies me that it must have been overlooked. The Tribunal misunderstood the significance of Mr Xiao’s statement and overlooked the most important part of it.
The written evidence of Hong Xhi Gao and Lin Zeng, reproduced at CB 335 and 338 was that they assessed the applicant in 2008 as being a “veteran practitioner”. In other words, they corroborated the applicant’s claim of having been practising Falun Gong for a considerable period before her third visit to Australia. The Tribunal makes no reference to that aspect of the evidence in its reasons. It does not necessarily follow, however, that the evidence was overlooked. The Tribunal found (implicitly) from the evidence of Mr Xiao that the applicant became genuinely interested in Falun Gong at the time of her second visit to Australia and that she used that visit to learn about Falun Gong. It was not inconsistent with that finding that, upon her third visit to Australia, having learnt about Falun Gong, the applicant might give the impression of being a veteran practitioner. Accordingly, the witness statements that the applicant appeared to be a veteran practitioner did not necessarily corroborate her claims of having practised Falun Gong in China and on her first visit to Australia. Obviously, the Tribunal might have concluded that the witness statements were in that respect corroborative of all of the applicant’s claims but it was not bound to do so. Because the Tribunal’s reasoning is not necessarily inconsistent with the evidence in the witness statements that in 2008 the applicant gave the appearance of being a veteran practitioner, I am unable to say from the silence of the Tribunal that the Tribunal overlooked that material.
The Tribunal committed a jurisdictional error by overlooking the opinion of Mr Xiao. But if I am wrong in that, and the opinion of Mr Xiao was not overlooked, the failure by the Tribunal to deal with that opinion in its reasons discloses another problem.
In his decision at [16], Raphael FM considered what he called 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.
In the present case, the Tribunal found that the applicant had undertaken particular Falun Gong conduct in Australia during her third visit here for the sole purpose of enhancing her protection visa claims. The Tribunal therefore disregarded that conduct. However, the Tribunal had found that the applicant had engaged in Falun Gong conduct during her second visit to Australia relating to Falun Gong out of a genuine interest. There was material before the Tribunal which supported the proposition that the applicant was a genuine and committed Falun Gong practitioner and had been so at least by the time of her second visit to Australia. That information was the letter from Mr Xiao. The Tribunal does not in its reasons explain how the applicant, who was genuinely involved in Falun Gong on her second visit to Australia became non-genuine in her Falun Gong activities on her third visit. The evidence before the Tribunal that the applicant was seen to be a veteran practitioner on her third visit obviously supported the proposition that the applicant had been practising Falun Gong for a long time which tended to support the opinion of Mr Xiao formed at the time of the applicant’s second visit.
The opinion of Mr Xiao was not dealt with by the Tribunal. In my view, the fact that the Tribunal put Mr Xiao’s opinion to one side and apparently did not take up the judicial advice of Raphael FM to contact Mr Xiao to discuss his letter is troubling. To overlook the opinion given by Mr Xiao is one thing. To consider but to remain mute about the opinion which was of real significance is quite another. To circumvent a judicial decision by constructing a decision which avoided a discussion of inconveniently relevant and important material would in my view not be a decision made in good faith: NAOX v Minister for Immigration[27].The Tribunal found at [141] (CB 441) that the applicant was not a witness of truth and that she was not a Falun Gong practitioner in China. However, the Tribunal also found that the applicant was a Falun Gong practitioner in Australia and unless the opinion of Mr Xiao could in some way be discounted, at the time of her second visit to Australia, she was genuine. To my mind, confronted with that reality, if the Tribunal took into account the opinion of Mr Xiao, the Tribunal could not have been certain that the applicant’s conduct on her third visit was solely to enhance her protection visa claims and its failure to attempt to reconcile the applicant’s apparently changed motivation for her Falun Gong activities conceals serious doubt. In the circumstances, the Tribunal needed to consider what the situation would be if the Tribunal was wrong in disregarding that conduct. By not considering that possibility the Tribunal fell into the error identified in Rajalingam and thus committed a jurisdictional error.
[27] [2009] FCA 1056
It follows that the applicant is entitled to relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
While it is a matter for the Tribunal, I observe that there would need to be some good reason for the Tribunal not to consider on the rehearing of this matter the opinion of the Victorian President of the Falun Dafa Association. He is a potential witness and I would expect that if he gave evidence to the Tribunal, that would be of considerable assistance to it.
I will hear the parties as to costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 August 2010
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