FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNXI v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 535 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to engage with the applicant’s claim and attend to its statutory obligations – whether Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) – whether Tribunal wrongfully disregarded conduct in Australia in reliance on s.91R(3) of the Act. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Applicant: | SZNXI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2255 of 2009 |
| Judgment of: | Barnes FM |
| Hearing dates: | 1 February 2010, 10 February 2010 |
| Last date of submissions: | 22 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2255 of 2009
| SZNXI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 12 August 2009 affirming a decision of the delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in February 2008 as the holder of a Student (Guardian) visa. She applied for a protection visa on 28 November 2008. The application was refused and she sought review by the Tribunal.
In connection with her protection visa application, the applicant provided details of her experiences in China in the 1990’s because of the one child policy. She claimed that she underwent a “termination [of pregnancy] and sterilization” and was required to pay a fine.
The applicant claimed to fear persecution in China as a Christian. She claimed that in 2004 she became involved in a Catholic house church through a former classmate and that in June 2005 she was “baptized and formally became a member of the church”. She claimed she was active in the church and took part in house gatherings whenever time permitted.
The applicant claimed that she had proposed that the church should apply to build a “place for religious gathering” in the name of the Elder’s People’s Association and that members of the church contributed money or manpower. She claimed that construction commenced in November 2005 but that someone informed the authorities “[w]hen the project was near completion” and that in January 2006 government officials came to the construction site to dismantle the building. According to the applicant, she and her husband and other church members were arrested at the construction site and taken to the local police station after an altercation with police, although her husband obtained his release that day through his contacts. She claimed that she was detained, “interrogated alone by the police” and accused of “organizing illegal religious gatherings and building an illegal place for gathering”. The applicant claimed that on 14 January 2006, while she was detained, her husband died in a car accident.
The applicant claimed that she was released after seven days when she had signed a guarantee that she would not attend church in the future and had paid a fine, accommodation and food costs. Initially she was required to report to the police weekly or fortnightly. Thereafter the police visited her home regularly, “checking whether [she] participated in underground house church gatherings”. She claimed they warned her to stop “connecting with the house church” or she would face a more severe penalty, but that she continued to attend gatherings and that she narrowly escaped arrest at a gathering in early March 2007.
The applicant came to Australia in February 2008 as guardian of her 17 year old daughter who held a student visa. She was detained in November 2008.
In connection with her protection visa application the applicant provided the Department with a number of supporting documents and translations, including a reference from the President of the Western Sydney Catholic Chinese Community dated 5 January 2009 stating that the applicant had been a member of the church community for two months; documents relating to the death of her husband and her claims about her children and the Chinese birth control program; a document dated 4 January 2009 said to be a testimony from a Chinese “Roman Catholic Sister” and six other persons; a copy of a certificate of baptism from a Chinese Catholic Archdiocese; and a testimony from a person in China who described herself as the applicant’s godparent.
The applicant attended an interview with a delegate of the first respondent. The delegate was not satisfied that the applicant was a member of an underground Christian (Catholic) Church in China or the moving force behind the planning and building of a larger place of worship or that she had been detained and mistreated by the Chinese authorities.
The delegate found the applicant’s claims to be “devoid of verifiable detail or fact” and “scant in nature and substance” and that her “submission[s] lack[ed]…veracity and credibility”. In addition, given that the applicant’s supporting documents stated that she had a fourth child in 2006, the delegate did not accept that she underwent sterilisation or a ligation procedure in the 1990s as claimed.
The applicant sought review by the Tribunal. She provided a statutory declaration elaborating on her claims in relation to the impact of family planning laws, her involvement in Catholicism in China and the events that occurred after she came to Australia, including her detention in November 2008.
She claimed to fear that if she was forced to return to China she would be arrested and detained by the Public Security Bureau (PSB) because of her involvement with the illegal house church and that as she had been involved in organising the construction of a gathering hall the PSB considered her to be an important member of the church with the potential to organise people to attend illegal house church gatherings. She claimed that the PSB continued to be interested in her after she left China and that her mother had told her that the PSB had visited her home and served her with a summons. She provided a further letter of support from a priest from the West Sydney Catholic Chinese Community stating that she had been regularly attending Chinese Catholic mass since 5 October 2008 and a number of photographs of her participation in church activities.
The applicant attended a Tribunal hearing on 22 May 2009. The only evidence before the court of what occurred at that hearing is the Tribunal account of the hearing in its reasons for decision. In addition, in a notice disputing facts (in response to a notice to admit facts) the Minister admitted that “the Tribunal did not, prior to its decision, make any remark to the Applicant about the absence of corroborating evidence for her claim to have acquired land for the purpose of construction of a meeting house”.
After the Tribunal hearing the applicant’s advisers provided the Tribunal with further information, including a statutory declaration of 3 June 2009 in which the applicant sought to clarify aspects of her evidence at the hearing, a psychological assessment of the applicant dated 29 May 2009, a detailed written submission about issues raised by the Tribunal and information from the Catholic Church in Australia stating that for adults baptism and confirmation may be received during the same ceremony (contrary to the Tribunal member’s suggestion at the hearing that the applicant could not have been baptised and confirmed on the same day as she claimed).
The Tribunal decision
In its reasons for decision the Tribunal set out the applicant’s claims in connection with her protection visa application, at the Departmental interview and in the course of the Tribunal review, including at the Tribunal hearing. It described the material provided in support of her claims, including the documents provided to the Department and to the Tribunal, and summarised the applicant’s psychological assessment report.
In its findings and reasons the Tribunal accepted “that the applicant suffered physically and emotionally at the hands of the Chinese authorities because of their enforcement of the ‘one child’ policy”, but observed that she did not claim to fear persecution in relation to that issue.
It summarised her claims to fear persecution because of her Christian faith as follows:
The applicant claims that she was first introduced to Catholicism in about August 2004. She states that she was baptised in June 2005. She claims that she became an active member of the church. She claims that because the church members did not have a formal place of worship she decided to enlist her husband’s help in constructing a building for such use. She stated they used the cover of the ‘Elder Persons’ Association’ in order to disguise the fact that the building was intended to be used for church gatherings. She claims that she and her husband bought a vacant piece of land and planning and construction approval were organised through contracts her husband had with the Land Bureau. Construction commenced in November 2005. On 11 January 2006, when the building was near completion, she claimed that 10 to 12 people from the PSB arrived and she, her husband and other church members were arrested and detained. Because her husband had contacts, he was released from detention that same evening. She claimed that her husband was the victim of a car accident, resulting in his death on 14 January 2006. She was told about her husband’s death on 15 January 2006 and was released from detention two or three days later. She was fined RMB5,000 and told that she had to report to the PSB each week. She reported as required and in February 2006 she decided to move her family to Fuqing City. She was again required to report to the police near her new home. She stated that in March 2006 the PSB from her area in Fuqing City went to her home and in April 2006 she received a summons telling her that she should report to the police station a week later. She claims that she received seven or eight summonses and continued to report to the police until December 2007. In March 2007 she attended a gathering where over 60 people were present. She claims that the gathering received a warning that the police were approaching and all persons involved managed to escape. She claims that she managed to get a passport in July 2007 and she departed China without any problem from the authorities. She claims that if she returns to China she will be persecuted because of her Christian faith.
The Tribunal accepted that the applicant had difficulty understanding some of the questions at the Departmental interview because the interpreter was not familiar with some Christian references, but was satisfied that she “did not experience any interpretation difficulties during [the] Tribunal hearing”. It was “satisfied that the applicant was able to give evidence and present arguments in relation to the decision under review”.
The Tribunal stated that it had taken into account the applicant’s claims in her protection visa application, her evidence during the Departmental interview and before the Tribunal and that it had “considered” the witness statements, photographs, psychological assessment report and adviser’s submissions, but that it did “not find the applicant to be credible on some key aspects of her claims”. It was “not satisfied that [she] left China because of her fear of persecution, as described in her application and evidence before the Tribunal”.
The Tribunal found that a number of matters “considered cumulatively” led it to conclude that the applicant was “not truthful or credible in relation to her religious persecution claims”. In relation to the applicant’s claims that she became a Catholic in China the Tribunal stated:
The applicant claims that she received the sacraments of Baptism, Confession, Holy Communion and Confirmation in 2005 in China. When asked by the Tribunal what was said when she was baptised and confirmed, she said she could not remember because it was such a long time ago. When the Tribunal spoke to her about her first confession, she stated that a priest was present and he said all the prayers. When asked if she said the Act of Contrition, she stated the priest did all the talking and she did not say any prayer. When asked if she was given any penance, she stated that the priest prayed for her and she again said that she did not say any prayers. She said she just told the priest she had done something wrong and he said he would pray for her. In her statutory declaration dated 3 June 2009, she stated that what she told the Tribunal was incorrect and that she did say a prayer after she confessed after she came ‘out of the Confessional’. She stated that she did not understand the ‘Tribunal’s question’ and thought that the Tribunal asked her whether she said a prayer in the Confessional after she confessed. The Tribunal does not find this explanation to be persuasive. The Tribunal is of the view that the applicant understood the Tribunal’s questions in this regard and after the hearing realised that her statements that she did not say any prayer indicated that she had not experienced first confession, as claimed. The Tribunal is not satisfied that the applicant converted to Catholicism in China or that she received the sacraments, as claimed.
The Tribunal stated in relation to the applicant’s claims that she and her husband had bought a vacant piece of land, had obtained planning and construction approval to build premises that could be used for church gatherings and the elderly and that construction began in November 2005 that: “Apart from the applicant’s evidence, there is no corroborative evidence relating to this building. The Tribunal is of the view that had the applicant and her husband obtained permission to build such a building, the applicant would have produced documentation in support of that claim. The Tribunal is of the view that the applicant would have been in a position to provide land title details relating to the plot of land in question”. The Tribunal noted that the applicant had provided “documentation in relation to her husband’s death and details of governmental action taken against her in relation to her breaches of the ‘one child’ policy”. It was not satisfied that the applicant and her husband were involved in construction of such a building or that they were detained because of any such involvement.
The Tribunal had regard to the fact that, despite her claimed detention in January 2006, ill-treatment and the imposition of subsequent reporting requirements to the PSB office locally and in Fuqing City, the applicant was issued with a passport in July 2007 and did not leave China until February 2008. The Tribunal was of the view that “the applicant’s ability to obtain a passport” indicated that the “authorities [did] not ha[ve] an adverse interest in her” and that had she “been required to report, as claimed, the authorities would not have issued her [with] a passport and she would not have left China unhindered”. It was of the view that had the applicant been in such fear she would have attempted to leave China at a much earlier date.
The Tribunal also had regard to the fact that while the applicant claimed to have received seven or eight summonses from the PSB in Fuqing from April 2006 on, she had not provided a copy of any of the summonses as corroborative evidence. It found her explanation at the hearing (that she threw some of them away after she reported, that possibly there were two left, or that her mother might have kept some, although she did not know where) was not persuasive.
Finally, the Tribunal had regard to the fact that while the applicant arrived in Australia in February 2008 she “did not lodge a protection visa application until November 2008, after she had been detained by the Department for engaging in employment in Darwin”. The Tribunal was of the view “that had the applicant been in fear of persecution as claimed, she would have lodged a protection visa application soon after she arrived in Australia” (in February 2008) and that she did so in November 2008 because that was the only option available to her as her Student (Guardian) visa had been cancelled on 12 November 2008 when she was taken into immigration detention.
Having found that the applicant was not truthful or credible in relation to her religious persecution claims on the basis of these matters considered cumulatively, the Tribunal continued:
Overall, the Tribunal is not satisfied that the applicant practised the Catholic faith in China or that she was detained and ill-treated by the Chinese authorities because of her involvement in the Catholic religion in China. The Tribunal is not satisfied that she and her husband were involved in the construction of a building, as claimed. The Tribunal is not satisfied that she was required to report to the PSB in China. The Tribunal is not satisfied that the applicant departed China because she feared persecution because of her religious practice in China. The applicant has provided a document purporting to be a Baptism Certificate dated 12 January 2009 and two letters from persons claiming to be fellow practitioners in China. However, given the adverse credibility findings herein, the Tribunal gives no weight to the statements which purport to corroborate the applicant’s claims that she practised the Catholic religion in China and that she fears persecution because of that practice, should she return to China. In light of the fundamental lack of credibility within the applicant’s evidence, the Tribunal is not satisfied that the statements in these documents are true.
The Tribunal then stated that it was of the view that “had the applicant fled China…to escape persecution because of her Catholic religion, she would have attended a Catholic Church as soon as possible after her arrival in Australia”. The Tribunal had recorded that when it raised with the applicant the fact that she had not attended any church in Australia until October 2008 the following exchange occurred:
I mentioned to the applicant that she had arrived in Australia in February 2008, yet had not attended any church until late 2008. She said she did not consult the newspapers to find a church. She said she was unable to find a church where they spoke Mandarin. I mentioned to the applicant that her daughter would be in a position to assist her and could have made enquiries for her. I mentioned that the Tribunal had concerns about her not attending church soon after her arrival in Australia. She said her daughter could not ask for her. She said she had problems in China and she was concerned that someone might pass on the message to the Chinese authorities that she was attending church activities in Australia. She said that would affect her family. They might arrest her mother and her two children. I mentioned to the applicant that her mother and children had not been arrested in the past and asked why they might be arrested now. She said they had searched her house in the past. I asked why she had not mentioned this reason before coming to the Tribunal. She said she did not know what to say at the last hearing. I asked if she was referring to the Departmental interview. She said yes, and she did not hear what questions were being asked. I mentioned to the applicant that she did not set this explanation out in her Statutory Declaration which was recently provided to the Tribunal. She said when she was in detention she was asked to prepare a statement and perhaps some information was missing.
The Tribunal found that the “applicant’s explanations as to why she did not attend a Catholic Church” soon after her arrival in Australia were “not convincing” and that had the applicant wished to find a Catholic Church in Australia “she could have done so without too much difficulty or effort”. It found that her “recent explanation” about fearing attracting the attention of the Chinese authorities was an “afterthought” and not convincing. The Tribunal was of the view that “the applicant’s inaction in not attending church in Australia between February and October 2008” did not constitute “conduct” for the purposes of s.91R(3) of the Migration Act 1958 (Cth) (the Act) and that it was therefore not required to disregard the applicant’s failure to attend church under s.91R(3).
The Tribunal then found:
The Tribunal accepts that the applicant started attending a Catholic Church in Australia in about October 2008, some eight months after her arrival in Australia. The Tribunal has considered the letter from Fr McGee and the photographs provided by the applicant to the Tribunal. However, in light of the Tribunal’s finding that she has not been truthful about her church activities in China, or having been detained in China for that reason, the Tribunal is not satisfied that the applicant has participated in church activities in Australia otherwise than for the purposes of strengthening her claims. Therefore, that conduct must be disregarded by the Tribunal in determining whether she has a well-founded fear of being persecuted for a Convention reason in China.
The Tribunal found that the applicant did “not claim to fear persecution in China for any other reason”. As it had found that the applicant was not a Catholic in China and had disregarded her conduct in Australia, the Tribunal found that there was nothing before it that supported a finding that the applicant would practise the Catholic religion if she returned to China and hence that there was no real chance that she or members of her family would suffer serious harm for reason of her being a Catholic now or in the reasonably foreseeable future.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in China and affirmed the decision not to grant her a protection visa.
This application
The applicant sought review by application filed in this court on 16 September 2009. She relies on a second further amended application filed in court on 10 February 2010 which contains three grounds. The first takes issue with the Tribunal’s treatment of corroborative evidence, the second is that there was a breach of s.425 of the Migration Act and the third is that the Tribunal wrongfully disregarded the applicant’s conduct in Australia under s.91R(3) of the Act.
Corroborative evidence
The first ground relied on by the applicant is as follows:
The Tribunal failed to truly engage with the claim presented by the applicant and attend to its statutory obligations when it did not take into account the written testimony from 2 witnesses in China (one of which also contained signatures from other Catholic believers and the other was from the applicant’s God parent who gave a contact telephone number). as (sic) well as the certificate of her Baptism in China, or give proper, genuine and realistic consideration to a psychologists (sic) report and in particular the opinion that because of [the applicant]’s impaired mental state her “response pattern may compromise (her) apparent credibility as an applicant and her capacity to effectively represent her claims” when it assessed her credibility. it (sic) thereby fell into jurisdictional error.
There are two aspects to this ground. The first relates to the Tribunal’s consideration of documents said to be written testimony from witnesses in China and a Chinese certificate of baptism (referred to for convenience as “the Chinese documents”). The second relates to its consideration of a psychological assessment report on the applicant conducted and provided to the Tribunal after the Tribunal hearing.
Counsel for the applicant submitted generally that while the applicant had provided a substantial amount of corroborating material, the Tribunal had failed to consider properly such corroborating material.
The Chinese documents
The applicant provided a number of Chinese language documents (and translations) to the Department in support of her application, including a document described as a certificate of baptism dated 4 January 2009 (and a translation dated 12 January 2009). This document was under the name of a bishop and bore a stamp referring to a particular Catholic Archdiocese and Bishopric in Fujian Province. It stated that the applicant, who was widowed, was baptised on 26 June 2005 and that: “She has taken part in the Confirmation”.
In addition, the applicant provided letters of support from a person who stated she was the applicant’s godparent and a director of the local Catholic church in a named village in China and from a person who described herself as a “pious Roman Catholic Sister” and director of the Catholic Church in the applicant’s village. This letter was signed and finger printed by seven other people. It described the applicant as “one of our Church activists” who actively participated in “the local Catholic Gospel promotion and making great efforts to solve the problems and overcome difficulties with the local Church gathering places”.
After finding that the applicant was not truthful or credible in her claims about religious persecution in China, the Tribunal referred to the “purport[ed]” baptism certificate and the letters from persons claiming to be fellow practitioners in China. However, given its adverse credibility findings it gave “no weight to the statements which purport to corroborate the applicant’s claims that she practiced the Catholic religion in China and that she fears persecution because of that practice, should she return to China. In light of the fundamental lack of credibility within the applicant’s evidence, the Tribunal is not satisfied that the statements in these documents are true”.
Counsel for the applicant submitted that in most cases the assessment of the veracity of corroborating documents had to be made independently of the assessment of the applicant’s credibility (see SZDGC v Minister for Immigration and Citizenship and Another (2008) 105 ALD 25; [2008] FCA 1638 at [23] and SZNSP v Minister for Immigration and Citizenship and Another (2009) 112 ALD 598; [2009] FMCA 1143) and that it was only in an exceptional case that the Tribunal could disregard corroborating documents solely on the basis that the applicant’s credibility had been completely destroyed. It was contended that this was not such a case, having regard to the fact that the Tribunal had accepted the applicant’s evidence that she had suffered physically and emotionally at the hands of the Chinese authorities because of their enforcement of the one child policy.
It was contended that the basis on which the Tribunal reached its adverse credibility finding indicated that this was not a case in which the “well has been poisoned beyond redemption” in the sense considered by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49] as follows:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
The applicant acknowledged that the Tribunal gave a number of reasons for its adverse credibility finding, but submitted that those reasons were insufficient to preclude the need to assess the veracity of the corroborating documents independently of the assessment of credibility and that hence the Tribunal had erred in not taking into account such corroborative material.
Counsel for the applicant submitted that the Tribunal had found that the applicant was not a Catholic in China solely on the basis of her evidence at the Tribunal hearing concerning what she said happened when she first received the sacraments of Baptism, Confession, Holy Communion and Confirmation in 2005 in China, notwithstanding that she had submitted a certificate of Baptism and references from other members of her church and from her godparent and that its finding in that respect did not warrant the Tribunal failing to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility.
Relevantly, the Tribunal recorded the following exchange at the hearing about the applicant’s first confession:
I asked the applicant when she made her first Confession. She said she did so in July 2005. She said a priest was present and he said all the prayers. I asked if she said the Act of Contrition. She stated the priest did all the talking. She did not say any prayer. I asked if she was given any penance. She stated that the priest prayed for her. She did not say any prayers. She said she just told the priest she had done something wrong and he said he would pray for her.
After the hearing the applicant provided a statutory declaration to the Tribunal in which she referred to the fact that when asked at the hearing if she had to say a prayer when she confessed she had stated that she did not say a prayer. She stated in her declaration that this was “incorrect” and that she had not understood the Tribunal’s question. She claimed that she thought that “the Tribunal meant whether [she had] said a prayer in the confessional after [she] confessed”. In her statutory declaration she stated that she said a prayer after she had come out of the confessional.
In its findings and reasons the Tribunal recorded that the applicant had said that the priest had said “all the prayers” at her first confession and when asked if she had said the “Act of Contrition”, stated that “the priest did all the talking and [that] she did not say any prayer”. It also recorded that “[w]hen asked if she was given any penance, she stated that the priest prayed for her and she again said that she did not say any prayers”.
The applicant submitted that the Tribunal’s finding that it was not satisfied that the applicant converted to Catholicism in China or that she received the sacraments as claimed was based on assumptions and speculation about the practice of Catholicism and the sacrament of reconciliation in China and was insufficient to preclude the need to consider the corroborative evidence. It was pointed out that the Tribunal’s understanding as expressed at the hearing about the practice of Catholicism in China in relation to whether baptism and confirmation could take place on the same day for an adult had proved to be inaccurate (although no such submission was made in relation to the accuracy of its understanding of what was involved in confession in the Catholic Church). The Tribunal had recorded that when the applicant claimed at the hearing that her confirmation happened “along with Baptism”, the Tribunal had put to her its understanding that in “the Catholic religion, one could not be confirmed and baptized at the same time” and that Confirmation came after Confession and Holy Communion. However after the hearing the applicant’s adviser provided information from the Catholic Church in Australia indicating that adults entering the Catholic Church could be baptised and confirmed at the same time. The Tribunal acknowledged and accepted that this was so in its reasons for decision and did not rely on this aspect of the applicant’s evidence in its findings and reasons.
The applicant also submitted that insofar as the Tribunal’s credit finding reflected its lack of satisfaction with the applicant’s evidence about whether she said any prayers on the occasion of her first confession, while the Tribunal stated that it had considered the psychologist’s report, no genuine or realistic consideration of the content of that report seemed to have been made when the Tribunal assessed this aspect of the applicant’s oral evidence and her subsequent written explanation as to her understanding of what she had been asked at the hearing. This issue is considered further below in relation to the second part of this ground.
The applicant also contended that the Tribunal’s reliance on the absence of corroborative evidence in relation to the applicant’s claims about involvement in buying land and building a building for church gatherings and in relation to her claim she had received seven or eight summonses did not lead to the conclusion that the applicant had lied when she said that she had acquired land and had been summonsed, as the Tribunal was unfairly applying reasoning akin to that in Jones v Dunkel and Another (1959) 101 CLR 298; [1959] HCA 8. It was submitted that a rule of evidence in adversarial proceedings was not suited to the inquisitorial functions of the Tribunal.
In relation to the relevance of the applicant’s ability to obtain a passport and her failure to leave China at an earlier time, it was submitted that in SZDGC Finkelstein J had found that where a credibility finding was founded on the applicant’s ability to obtain a passport and leave China, this was insufficient to preclude the need to consider corroborative material. It was also submitted that the same could be said about the applicant’s failure to seek protection at an earlier time.
In SZDGC Finkelstein J had found (at [27]) that the Tribunal’s rejection of the authenticity of the documentary evidence because it did not accept the applicant’s claims was not a “rational approach” and that it was “false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest” (also see SZMWI v Minister for Immigration and Citizenship and Another (2009) 111 ALD 160; [2009] FMCA 770) and suggested at [23]:
It is only necessary to deal briefly with the second ground. The complaint is that the tribunal failed to "consider the corroborative evidence in the form of the Summons against the husband of the applicant and the Administrative Penalty Order, before making the adverse credibility finding". I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49] McHugh and Gummow JJ said "it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.
Reference was also made to WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 and S20/2002 at [49]) in which the Full Court of the Federal Court considered a failure by a Tribunal to have regard to certain documents because it was not convinced the documents could overcome the difficulties it had with the visa applicant’s evidence. Lee and Moore JJ stated at [27]:
… it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
The applicant submitted that the circumstances of this case and the Tribunal’s reasons for decision were quite different from the circumstances in S20/2002. It was pointed out that in S20/2002 the Tribunal had made a credibility finding based on conclusions that the applicant’s claims were “exaggerated, far-fetched, and implausible”, “inconsistent with the independent evidence” and contained “notable inconsistencies” which suggested fabrication (see [42]). The applicant conceded that in such a context it would be open to the Tribunal (and not irrational) to decide that the applicant had lied without weighing corroborative evidence (at [49]).
Counsel for the applicant submitted however that in this case the Tribunal’s failure to have regard to corroborative material constituted a failure to have regard to relevant considerations. Such an approach was said to be consistent with SZLGP and Another v Minister for Immigration and Citizenship and Another (2009) 181 FCR 113; [2009] FCA 1470 in which Logan J rejected a contention that jurisdictional error consisting of a failure to have regard to relevant considerations required demonstration that a whole aspect of a visa applicant’s case had been overlooked, not just a particular document (at [42] – [43] and [53]). His Honour stated at [43] “I do not accept that the basis for this type of jurisdictional error is as confined as the Minister has propounded or that regard to the cases cited [WAIJ and NAJT] bears this out. Rather, each of these cases offers but another example of a procedural fairness error on the part of the Tribunal in failing truly to engage with the claim as presented by the visa applicant.” (also see NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [212] and SZMOI v Minister for Immigration & Anor [2008] FMCA 1507 at [14] – [21]).
The applicant relied in particular on the approach taken by Raphael FM in SZNSP. His Honour concluded that the Tribunal had erred in failing to give consideration to corroborative evidence produced by an applicant prior to its conclusion as to her credibility. Raphael FM expressed the view that the Tribunal had not found that the applicant had lied and that it had believed some of her assertions, but had concluded that her evidence had been fabricated “only after a consideration of the cumulative effect of ‘minor’ concerns” (at [12]).
However after the hearing in this matter, the Full Court of the Federal Court delivered judgment on appeal in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50. The appeal was allowed. North and Lander JJ held (at [30]) that it was not necessary for the Tribunal to find expressly that a party had lied as a precondition to a finding that a piece of evidence that might be corroborative should be rejected, consistent with the approach taken by McHugh and Gummow JJ in Applicant S20/2002 at [49]. Their Honours stated that “A finding of fabrication is enough to allow the RRT to consider whether the evidence which has tendered in support of the applicant’s case has the capacity to affect the RRT’s assessment of the applicant’s credibility” (at [31]).
In any event their Honours suggested that if a finding of lying was a “precondition”, a finding that claims were not credible and had been fabricated was “tantamount to a finding of lying” (at [32]).
Their Honours found that, consistently with Applicant S20/2002, it was open to the Tribunal in SZNSP “to assess the credit of the [visa applicant] and then, in the light of that assessment, consider what weight should be given to the witness statement” (at [33]) and that such a process had been followed by the Tribunal when it stated “Given the adverse credibility finding, the Tribunal does not give weight to the document” (at [33]).
Indeed their Honours suggested (at [36]) that: “When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand”.
However it was conceded that the Tribunal would fall into jurisdictional error “if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence” (at [38]).
In SZNSP Katzmann J agreed with North and Lander JJ, adding that there was “no logical reason why a tribunal of fact cannot conclude that a witness has lied after taking into account a number of matters each of which on their own might be considered "minor"” (at [49]).
The parties were given the opportunity to make further submissions in light of SZNSP. The applicant pointed to the fact that North and Lander JJ had explained that the ability of the Tribunal to reject allegedly corroborating material out of hand depended on the nature, context and quality of the evidence. It was submitted that, in contrast to the material relied on in SZNSP, in this case the supporting letter from the applicant’s godparent invited contact by anyone with queries and that each of the signatories of the letters had provided fingerprints and signatures with differences apparent on inspection and that this was such as to verify its provenance. It was submitted that given these aspects of the “nature” and “quality” of the documents, the corroborative material could not be rejected “out of hand” and that if the Tribunal was concerned about the provenance of the material it could have satisfied itself by telephoning the author. On this basis it was contended that any finding that documents were not authentic had to be made for reasons independent of the credibility finding (see SZDGC at [27]).
The first respondent submitted that, contrary to the applicant’s contention, the Tribunal did not “disregard” the corroborating documents the applicant put forward, but rather that it set out the matters it took into account including these documents, summarised their contents and made a distinct finding about the weight it would attach to such documents. It was contended that the assessment of the weight to be given to items of evidence was a matter for the decision maker and that there was no error of law or jurisdictional error in the Tribunal giving a piece of evidence more or less weight than a court thought proper.
Insofar as the applicant contended that there was a failure to have regard to relevant considerations, the first respondent submitted that a document which constituted a piece of evidence one way or another and whether the claim was true was not a consideration but rather a piece of evidence and that the Tribunal had not ignored any issue or claim, but rather had stated a view it proposed to give to a body of evidence which if given different weight might have led to a different conclusion.
Counsel for the first respondent also referred to the fact that, as Gleeson CJ stated in Applicant S20/2002 (at [14]), the “[e]xpression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.”
The first respondent submitted that in this case the Tribunal’s finding that the applicant was not truthful or credible in relation to her religious persecution claims and that her lack of credibility was “fundamental” revealed a strong and firm view on the credibility of the applicant in relation to her religious persecution claims. It was submitted that it could not be said to be illogical for the Tribunal to reach the view that the corroborative evidence did not rescue the applicant’s case, consistent with the approach taken in Applicant S20/2002 as the Tribunal was quite convinced that the applicant’s claims of religious persecution were fabricated and evidently took the view that the claims could not be saved by corroboration. This reasoning by the Tribunal was said to be indistinguishable from that considered in Applicant S20/2002 (which, it was noted, had not determined whether illogicality would constitute jurisdictional error as the Tribunal’s reasoning was found not to be illogical).
Insofar as the applicant criticised the probative force of the considerations to which the Tribunal referred in concluding that she was not truthful in her claims of religious persecution, the first respondent pointed out that the applicant did not submit that the Tribunal fell into jurisdictional error in reaching that conclusion (except in the specific manner alleged in ground two based on s.425 of the Act). It was submitted that having reached the conclusion about credibility as firmly as it did, the Tribunal did not act irrationally in rejecting the additional evidence which purported to corroborate the applicant’s account.
In post-hearing submissions the first respondent referred to the fact that on appeal in SZNSP the Full Court of the Federal Court had held that it was not necessary for the Tribunal to find in terms that the applicant had “lied” (at [30] per North and Lander JJ) and that if the Tribunal regarded the applicant’s claims as fabricated this was in effect no different from a finding of lying and was enough for the Tribunal to consider “whether the evidence which has been tendered in support of the applicant’s case has the capacity to affect the RRT’s assessment of the applicant’s credibility” (at [26], [31] – [32] per North and Lander JJ and [45], [50] per Katzmann J). Reference was also made to the fact that as North and Lander JJ observed (at [33]), “it was open to the RRT to assess the credit of the [applicant] and then, in the light of that assessment, consider what weight should be given to the witness statement”.
The Minister did not rely on the part of the judgment in SZNSP in which North and Lander JJ observed that the evidence in question in that case was not corroborative at all, because its provenance was not established except by what the applicant said and that the material which had those deficiencies could properly be rejected in light of a “tentative conclusion that the applicant’s claims have been fabricated” (at [35] – [36] per North and Lander JJ).
It has not been established that the Tribunal fell into jurisdictional error in the manner contended for by the applicant in relation to the Chinese documents. First, insofar as it was submitted generally that the Tribunal failed to have regard to relevant considerations, while there is authority to support the view that a failure to have regard to an item of evidence could give rise to a jurisdictional error if the error meant that the Tribunal failed “truly to engage with” (and thus to consider) the claim as presented by the applicant and hence failed to discharge its “imperative duties” (see SZLGP at [43] and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [27] – [28] and cases cited therein), no such error has been established in this case.
The Tribunal did not fail to have regard to the Chinese documents. It set out that it took into account a number of matters including the applicant’s claims and evidence, the witness statements, photographs, the applicant’s psychological assessment report and the adviser’s submissions, but that it did not find the applicant to be credible on some key aspects of her claims for a number of reasons and was not satisfied that the applicant left China because of her fear of persecution as described in her application and evidence. For cumulative reasons, which it gave, the Tribunal did not find the applicant to be truthful or credible in relation to her religious persecution claims and found that there was a “fundamental lack of credibility within the applicant’s evidence”. In light of this adverse credibility finding, the Tribunal then considered the weight it would attach to the baptism certificate and two witness statements. It did not simply refuse to consider the potentially corroborative material.
In this part of the findings and reasons, both at the start and end of its discussion, the Tribunal referred to the corroborative material. The Tribunal expressly turned its mind to whether that corroborative material could overcome the difficulties it saw with the applicant’s account of events, but determined that it did not regard that material as having any weight. The Tribunal did not leave such evidence out of account, either consciously or unconsciously disregarding it, but rather assessed the evidence and weighed the corroborative evidence in the balance with all the other evidence in the sense considered in SZNSP at [38].
North and Lander JJ stated in SZNSP that it is not “necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected” (at [30]) consistent with the approach in Applicant S20/2002. As their Honours pointed out, a finding that the applicant “had not fabricated her claim” or that her claims were not credible (as was made in this case) is, in any event, “tantamount to a finding of lying”.
Further, the fact that the Tribunal accepted other aspects of the applicant’s evidence (in this case in relation to the impact of the “one child” policy) does not mean that it was not open to it to assess the credit of the applicant in relation to her claims about what occurred in China that were relevant to her protection visa application and having found, in effect, that the applicant had fabricated those claims, to consider what weight should be given to corroborative evidence in light of that assessment.
Insofar as issue may be taken with the manner in which the Tribunal expressed itself in this part of its decision, in SZNSP at [33] North and Lander JJ found it sufficient that the Tribunal stated “Given the adverse credibility finding, the Tribunal does not give weight to the document” in relation to a witness statement, notwithstanding that this was expressed in “the most cryptic terms” (at [33]).
Similarly, in SZNPG the Full Court of the Federal Court stated at [26] that the Tribunal does not “fall into jurisdictional error if it fails to express its reasons for rejecting corroborative evidence with full clarity”.
In this case, after setting out its reasons for finding the applicant not truthful or credible in relation to her religious persecution claims, the Tribunal stated:
Overall, the Tribunal is not satisfied that the applicant practised the Catholic faith in China or that she was detained and ill-treated by the Chinese authorities because of her involvement in the Catholic religion in China. The Tribunal is not satisfied that she and her husband were involved in the construction of a building, as claimed. The Tribunal is not satisfied that she was required to report to the PSB in China. The Tribunal is not satisfied that the applicant departed China because she feared persecution because of her religious practice in China. The applicant has provided a document purporting to be a Baptism Certificate dated 12 January 2009 and two letters from persons claiming to be fellow practitioners in China. However, given the adverse credibility findings herein, the Tribunal gives no weight to the statements which purport to corroborate the applicant’s claims that she practised the Catholic religion in China and that she fears persecution because of that practice, should she return to China. In light of the fundamental lack of credibility within the applicant’s evidence, the Tribunal is not satisfied that the statements in these documents are true.
Consistent with SZNSP, the Tribunal reasons demonstrate that the Tribunal made an assessment of the nature and value of the documents purporting to be a Baptism Certificate and written statements in support of the applicant’s claims and then considered their “effect in the light of the view it had formed to that point about the credibility of the [applicant]” (SZNSP at [33]).
On the approach taken by the Full Court of the Federal Court in SZNSP, the Tribunal did not simply reject the corroborative evidence “out of hand” (at [36]) or refuse to consider it. Rather, having made a firm adverse credibility finding (cf WAIJ), it assessed and determined the weight to be given to evidence. This is not a case in which the corroborative evidence was disregarded in circumstances that revealed a failure to have regard to relevant considerations in the manner contended for by the applicant (and see SZNSP at [38] suggesting that the observation in SZDGC at [23] concerning the dicta of McHugh and Gummow JJ in Applicant S20/2002 that was relied on by the applicant “is probably misdirected’).
Insofar as it was intended to be contended that the Tribunal acted irrationally or illogically, as North and Lander JJ stated in SZNSP at [37]:
Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 [2005] HCA 30; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
Further, while the applicant took issue with the significance of the matters relied on by the Tribunal to conclude that the applicant was not truthful in her religious persecution claims, Katzmann J stated in SZNSP at [49]:
… there is no logical reason why a tribunal of fact cannot conclude that a witness has lied after taking into account a number of matters each of which on their own might be considered “minor”.
Her Honour also referred to the fact that having reached such conclusion there is “nothing illogical about deciding that evidence proffered as corroboration of an account found to be false deserves little or no weight” (at [50] and see WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1580 at [20] – [21] per French J).
The Tribunal’s finding about the fundamental lack of credibility in the applicant’s evidence based on the matters it referred to was open to it for the reasons it gave on the material before it, even if, as the applicant appeared to suggest, another decision maker may have reached a different decision on some such matters. Insofar as the Tribunal’s reliance on particular matters was criticised, as the Tribunal observed, it reached the adverse credibility finding based on several matters considered cumulatively.
Consistent with the reasoning of the Full Court of the Federal Court, which I am bound to follow, the approach taken by the Tribunal in relation to the Chinese documents is not such as to reveal jurisdictional error, whether considered alone or in conjunction with the Tribunal’s approach to the psychologist’s report.
The psychologist’s report
Ground one also asserts that when the Tribunal assessed the applicant’s credibility it failed to engage in a proper, genuine and realistic consideration of the psychologist’s report prepared and provided after the Tribunal hearing, in particular the psychologist’s opinion that because of the applicant’s impaired mental state her “response pattern may compromise [her] apparent credibility…and her capacity to effectively represent her claims”. It was said to be insufficient for the Tribunal simply to say that it had considered the psychologist’s report. Rather, it was contended that where there was evidence central to the issue of credibility (as this report was said to be), there was an extra requirement on the Tribunal to give reasons why such material did not change its view on credibility. In oral submissions this was said to be consistent with the approach taken by Weinberg J in SZIIF v Minister for Immigration and Citizenship and Another (2008) 102 ALD 366; [2008] FCA 913. Other cases were also addressed in the applicant’s oral submissions, as discussed below.
The first respondent submitted that the Tribunal had not failed to have regard to a relevant consideration or otherwise left the psychologist’s report out of account in a manner constituting jurisdictional error.
The notion of “proper, genuine and realistic consideration” was used by Gummow J in NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470; [2005] HCA 77 (at [37]) in the context of considering the scope of the Tribunal’s obligation under s.425 of the Act. His Honour (dissenting) referred to the fact that counsel for the Minister had “accepted that it is implicit in the reference in s 425 to a hearing where evidence may be given that the challenge to the decision under review by the RRT be given a proper, genuine and realistic consideration in the decision to be subsequently made by the RRT.” In that case the question was whether there had been a denial of procedural fairness in circumstances where an inordinate delay had affected the Tribunal’s capacity to consider fairly the case before it and to assess the appellants’ credibility and thereby to meet its obligations under s.425 of the Act. This is not such a case.
In SZIIF there had also been a significant delay in the Tribunal’s decision-making. It was in that context that Weinberg J considered the reasoning in NAIS and the apparent acceptance by Gummow J (in dissent) that implicit in s.425 was an obligation to give “proper, genuine and realistic consideration” to the applicant’s case (see SZIIF at [67] – [83]). Weinberg J stated at [83]:
Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the Tribunal in its reasons for decision, can give rise to jurisdictional error. This may be because the Tribunal has failed to take into account a matter that it was obliged to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Alternatively, it may be that the Tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness.
Weinberg J stated that the Tribunal was obliged to take into account the time that had passed since the applicant’s first account of his history and the fact that he had to recall events repeatedly over the next four years (because the application has been remitted to the Tribunal on three occasions) in considering what significance, if any, to attach to inconsistencies in his accounts. It was in the “unusual” circumstances of that case (see [93]) that Weinberg J found that the Tribunal had to exercise particular caution in assessing matters such as prior inconsistency and explain its process of reasoning and stated at [98]:
… when one adds to the mix the fact that none of the inconsistencies identified were properly analysed, several seemed to have misstated the appellant’s earlier position, and some involved summaries taken out of context, the entire process appears to have gone badly wrong. To use the language of Gummow J in NAIS, the Tribunal did not give “proper, genuine and realistic” consideration to the appellant’s case. He was not afforded the hearing to which the law entitled him.
However the facts in this case are not akin to those considered in NAIS and SZIIF. In particular, there is no suggestion of any significant delay affecting the Tribunal’s ability to properly consider the application.
Moreover, to provide a basis for judicial review, a jurisdictional error in the sense considered in Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 must be identified. As counsel for the first respondent pointed out, the ground alleging failure to have regard to relevant considerations is directed at the proper identification of issues rather than the finding of facts (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [74]).
It is the case that in SZKHD v Minister for Immigration and Citizenship [2008] FCA 112 Collier J found that because the Tribunal did not explain its approach in relation to a psychologist’s report, it was under an obligation to explain what it meant when it said it accepted that evidence. Her Honour stated at [27]:
while one interpretation of the view taken by the Tribunal of the psychologist’s report is that the Tribunal accepted the consultant psychologist’s diagnostic formulations but rejected the factual basis of those formulations (as submitted by the first respondent in the case before me), this arguably makes a nonsense of the consultant psychologist’s report, and is an interpretation by the Tribunal which should not be accepted in the absence of clear indication by the Tribunal. Such clear indication is not apparent here. With respect, an equally likely interpretation of the Tribunal’s findings in relation to the consultant psychologist’s report is that the Tribunal did not, in fact, take into account the consultant psychologist’s report in any meaningful sense.
Similarly, in SZMOI Driver DM found that the Tribunal had overlooked the significance of a psychologist’s report in considering whether the applicant was able to give reliable evidence in considering the credibility of his evidence (at [21]) in a manner constituting jurisdictional error.
The applicant relied on these cases which, as the first respondent accepted, illustrate that in some cases the Tribunal’s failure to discuss a body of evidentiary material may lead to an inference that an issue has not been considered or to an inference about the Tribunal’s understanding of the criteria for a visa, albeit a failure to refer to evidence as such is not within any of the traditional grounds of review.
Counsel for the first respondent formally submitted that to the extent the reasoning in SZKHD was against the Minister it was wrong. I am of course bound to follow SZKHD, but it is distinguishable. In this case the psychologist expressed an opinion that because of the applicant’s impaired mental state, her “response pattern may compromise (her) apparent credibility as an applicant and her capacity to effectively represent her claims”. In SZKHD there was a tension between the Tribunal’s rejection of the applicant’s claims of past harm and its failure to question a clinical diagnosis based on that claimed history. However what is in issue in this case is whether the psychologist’s diagnosis raised questions about the reliability of the applicant’s evidence at the hearing that should have been addressed by the Tribunal in considering her credibility.
In SZMOI the issue was whether the Tribunal had overlooked the significance of a psychologist’s report in considering whether the applicant was able to give reliable evidence and in considering the credibility of his claims (at [21]). However in that case the Tribunal’s decision was silent as to any consideration of the psychologist’s report in relation to the applicant’s capacity to give reliable evidence, although it considered the report in relation to the applicant’s factual claims. Driver FM inferred from the Tribunal’s silence on the issue of the reliability of the applicant’s evidence that the applicant’s capacity to give reliable evidence because of his mental condition was not considered by it. It was in that context that his Honour found that the failure of the Tribunal to give any express consideration to the psychologist’s report in relation to the question of whether the applicant had capacity to give reliable evidence meant that the Tribunal fell into jurisdictional error in the sense considered in SZKHD (at [24] – [25]).
Counsel for the first respondent also submitted that SZMOI was clearly wrong. It is not necessary to determine that issue as it can also be distinguished (see SZNOC & Anor v Minister for Immigration & Anor [2009] FMCA 1217 and SZNMJ vMinister for Immigration and Citizenship and Another (2009) 112 ALD 284; [2009] FCA 1345). In this case, when regard is had to the Tribunal reasons for decision as a whole, it is apparent that (as the Tribunal recorded) it had its attention drawn to and considered the possibility that the reliability of the applicant’s evidence might be adversely affected by the condition from which she was suffering and considered that possibility.
The Tribunal set out in some detail the opinion of the psychologist to that effect, including the following:
The author stated that the applicant “is also likely to have developed an anxiety reaction to the thought of returning to China, which appears to be associated with a range of panic symptoms that purportedly become pronounced during her recent DIAC interview. This response pattern, along with her inability to express her thoughts, is likely to impair [the applicant’s] capacity to adequately respond to questions and represent her claim. Therefore, care should be exercised in interpreting [the applicant’s] testimony at interview in light of her current clinical psychopathology.”
In its findings and reasons the Tribunal referred to the need to be sensitive to the difficulties often faced by asylum seekers when assessing credibility. The Tribunal accepted that the applicant had difficulty understanding some questions in the Departmental interview because of interpretation issues. Not only was the Tribunal satisfied that there were no such interpretation difficulties at the Tribunal hearing but it also stated that it was “satisfied that the applicant was able to give evidence and present arguments in relation to the decision under review”.
Of itself this may not be sufficient to indicate consideration of the psychologist’s report in relation to the applicant’s evidence at the hearing. However the Tribunal also accepted that the applicant had suffered physically and emotionally at the hands of the Chinese authorities because of their enforcement of the “one child” policy and went on to say that it had considered the material before it, including the psychologist’s report, but that nonetheless it did not find the applicant to be credible on some key aspects of her claims. This is, in effect, a finding that despite the assistance of the psychologist’s report it did not find the applicant credible for the reasons which it gave.
Moreover in this case none of those reasons depended on inconsistencies in the applicant’s oral evidence given at different stages of the hearing or on the applicant’s demeanour at the hearing or apparent lack of passion (in contrast to the approach that had been taken by the delegate) or anything consistent with the psychologist’s report that the applicant had difficulty adequately responding to questions or representing her claim. In particular no such failure is apparent in relation to the issue of whether the applicant understood the Tribunal’s questioning about whether she said an Act of Contrition or prayer at confession. The Tribunal’s account of the relevant part of the hearing is not such as to have required it to address the precise findings of the report in the context of addressing its concern about the applicant’s evidence that she did not say any prayer in confession. I note that there was no suggestion in the post-hearing submission and statutory declaration that anything other than a “misunderstanding” on the part of the applicant explained the applicant’s evidence at the hearing in this respect.
The Tribunal’s account and assessment of the applicant’s evidence in this and other relevant respects was not such as to require an express consideration of why the psychologist’s report did not change its view on the credibility of those aspects of her evidence. The issues relied on by the Tribunal did not relate to the applicant’s response pattern at the hearing or discussion of her thoughts (which the psychologist’s report said she was unable to express). Matters such as the absence of corroborative material or copies of summons, the applicant’s delay in leaving China, her ability to obtain a passport and leave China unhindered and her delay in applying for a protection visa are not such that the psychologist’s opinion required specific consideration in the Tribunal’s reasoning about such matters.
This is not a case in which the Tribunal was silent about the psychologist’s report. It has not been established that the Tribunal erred in failing to give the psychologist’s report specific attention by explaining why the report did not change its mind on credibility in relation to any of the cumulative reasons given by the Tribunal for rejecting the applicant’s credibility. As the psychologist’s report did not go directly to the problems that the Tribunal had with the key aspects of the claims that were in issue, it should not be inferred (based on the absence of an express explanation of the process of reasoning leading to the credit finding that addressed the impact of the psychologist’s report on such findings) that the Tribunal failed to consider the psychologist’s report and opinion in a manner constituting jurisdictional error.
Ground one is not made out.
Section 425
The second ground is that:
The Tribunal failed to comply with its obligation under s 425 of the Act to provide the applicant with an opportunity to attend a hearing to present evidence and arguments about whether corroborating material was available to support her claim that she and her husband had purchased land in China for the purpose of construction of a meeting house.
One of the factors the Tribunal had regard to in concluding that the applicant was not truthful or credible in relation to her religious persecution claims was the fact that, apart from her evidence, there was no corroborative evidence relating to the building she described as a meeting house. The Tribunal addressed the applicant’s claim that she and her husband had bought a vacant piece of land and obtained planning and construction approval to construct premises for use for church gatherings and the elderly and that construction began in November 2005 and stated “Apart from the applicant’s evidence, there is no corroborative evidence relating to this building. The Tribunal is of the view that had the applicant and her husband obtained permission to build such a building, the applicant would have produced documentation in support of that claim. The Tribunal is of the view that the applicant would have been in a position to provide land title details relating to the plot of land in question. The Tribunal notes that the applicant provided documentation in relation to her husband’s death and details of governmental action taken against her in relation to her breaches of the ‘one child’ policy. The Tribunal is not satisfied that the applicant and her husband were involved in construction of the said building. The Tribunal is not satisfied that the applicant and her husband were detained because of any such involvement.
The applicant delivered a notice to admit facts to the Minister requiring an admission that at the hearing or at any time prior to its decision the Tribunal “did not alert the applicant to the issue that she had not provided corroborating material in support of her claim to have acquired land in China for the purposes of the construction of a meeting house for her church”. In a notice disputing facts in response to the notice to admit facts, the first respondent admitted that the Tribunal “did not, prior to its decision, make any remark to the Applicant about the absence of corroborating evidence for her claim to have acquired land for the purpose of construction of a meeting house”. The Minister did not otherwise admit the facts asserted to in the notice to admit facts.
The applicant submitted that the absence of corroborating documents concerning the acquisition of land for construction of the meeting place was one of the principal reasons for the adverse credit finding and that thus it was a critical issue in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 that should have been raised with the applicant at the hearing. It was pointed out that the absence of such material was not a matter that was raised by the delegate. Counsel for the applicant submitted that this was clearly a deficiency that the applicant could have addressed by presenting evidence or argument had she been aware that it was a critical issue. It was said that the applicant could have taken steps to obtain documentary evidence of title had the importance of the absence of such evidence to the Tribunal’s reasoning been brought to her attention or pointed to the witness statement (although the reference to the applicant “making great efforts to solve the problems and overcome difficulties with the local Church gathering places” does not refer to the particular land purchase claim in issue).
The High Court stated in SZBEL at [47]:
… there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
In this instance the applicant submitted that the Tribunal should have expressly raised with the applicant the question of whether corroborative material was available to support her claim about the purchase of land for the purpose of construction of a meeting house. The applicant relied on the approach of Perram J in SZMUK and Othersv Minister for Immigration and Citizenship and Another (2009) 112 ALD 295; [2009] FCA 1372. The applicant submitted that Perram J had found that where the Tribunal’s reasoning was based upon the absence of evidence on an issue, that made the question of whether evidence existed an issue in the SZBEL sense and that if an applicant was not given the opportunity to present evidence to meet that deficiency the hearing was unfair in the sense considered in SZBEL.
In SZMUK the Tribunal had, in effect, rejected independent evidence in an article provided by the appellants about violence against members of the SLLP (a political party in their home country of Sierra Leone) in July 2008, in the absence of a corroborating claim by the SLPP to the same effect (where the SLPP had made claims about violence at earlier times).
Perram J found that the appellants had not been afforded the opportunity to make any submissions about this reasoning and were not told that the article was to be treated as untrue or that their case was to fail because they had not provided proof from the SLPP itself that its members were being attacked in July 2008. This was said not to be a peripheral issue, but rather the “central question” before the Tribunal. While his Honour accepted that the Tribunal had given the appellants the opportunity to establish that they might be subject to violence if they returned to Sierra Leone (both at the hearing and by virtue of a letter from the Tribunal), he stated (at [14]) that: “What the Tribunal did not say was that it was proposing to reject the only evidence on the topic of violence in June/July 2008 on the basis of the Tribunal’s own surmise that that evidence must be wrong because if it were to be right then the SLPP would itself have complained.”
The conclusion that the SLPP had not complained about violence in 2008 was inferred by the Tribunal in SZMUK from the absence of any evidence before it to that effect. Perram J found (at [15]) that it followed that the Tribunal “regarded the absence of evidence about the SLPP’s complaints as to violence against its members in June/July 2008 as a critical issue” and that in fact it was “the determinative matter in the Tribunal’s consideration”.
The applicant contended that in this case, as in SZMUK, the absence of corroboration was the central issue and that, consistent with the approach in SZMUK, the Tribunal was under an obligation to put the applicant on notice of its concern about the absence of corroborating material in relation to the purchase of land for a meeting house.
While counsel for the applicant acknowledged that the Tribunal was not obliged in every case in which it wanted to reject a piece of evidence to explain its reasoning process to the applicant in the course of the hearing, it was submitted that in certain circumstances the way in which a piece of evidence critical to the outcome of a case was dealt with by a Tribunal could give rise to a lack of procedural fairness. In this case the Tribunal’s credibility finding was said to be the basis for rejecting the applicant’s case. It was submitted that one of the planks of the credibility finding (and not just a piece of evidence) was the absence of corroborative evidence in relation to the claim about a new church building. There was said to be a strong similarity between the manner in which the reasoning process in SZMUK offended s.425 and the impact of the reasoning process in this case, notwithstanding that the question whether the applicant was an underground Christian in China was an issue that was flagged to the applicant.
It was pointed out that the applicant had supplied evidence to the Tribunal to support her case that she was an underground Christian in China (being the corroborative statements from people in China). It was said that the applicant should have been put on notice of the significance of her failure to provide corroborative material about the building claim so that she had a chance to remedy it and that, as in SZMUK, the absence of such notification in this case resulted in a hearing which was unfair in the sense that the decision maker decided the case by reference to an issue which the applicant “could not be reasonably expected to have anticipated” (see SZMUK at [17]). The applicant contended that she could not reasonably have expected that her credit would be determined by her failure to produce a document that supported her claim that she bought land in China, particularly as she had provided corroborative material as to her underground Christian practice in China.
As the Full Court of the Federal Court stated in SZISM v Minister for Immigration and Citizenship and Another (2007) 158 FCR 292; [2007] FCAFC 61 (at [27]): “Whether or not an issue relied upon by the Tribunal can be said to have been one which should have been raised with the applicant will be a matter for assessment of fairness in each case.” It was submitted that fairness would have required the Tribunal to have raised the issue of whether or not there was supporting documentation in relation to the purchase of land in China by the applicant and that it was unjust for the Tribunal to rely on the absence of that material without giving some notice to the applicant so that she could remedy that deficiency if she could.
The application of the principle in SZBEL to such a specific issue was also said to be consistent with the approach taken by Flick J in SZDFZ v Minister for Immigration and Citizenship and Another (2008) 168 FCR 1; [2008] FCA 390 in relation to the width of the concept “the issues arising in relation to the decision under review” in s.425(1) of the Act (and see the remarks of Gray J in SZHKA and Another v Minister for Immigration and Citizenship and Another (2008) 172 FCR 1; [2008] FCAFC 138).
The first respondent accepted that the credibility of the applicant’s claims generally, and in particular her claim to have been the driving force behind the acquisition of land to erect a new building for the congregation, were “issues arising in relation to the decision under review” within s.425 but submitted that the applicant was put on notice of these issues by the delegate’s decision and thus had an opportunity to address them at the hearing. It was submitted that the particular reason the Tribunal found this claim implausible was not in itself one of the “issues arising” in the relevant sense and that the Tribunal was not obliged under s.425 to raise with the applicant the absence of evidence to support her claims. It was contended that SZMUK did not lead to a different result as in that case the applicants were not put on notice that the factual correctness of an article upon which they relied was in contest.
It is not in dispute that the credibility of the applicant’s claims generally and in particular her claim to have been the driving force behind the acquisition of land to erect a new building, were “issues arising in relation to the decision under review” within the meaning of s.425(1). I am satisfied that the applicant was clearly put on notice of these issues by virtue of the delegate’s decision and thus had an opportunity to address them at the hearing. The delegate was not satisfied that the applicant had been a member of an underground Catholic Church or the moving force behind the planning and building of a larger place of worship for the congregation and found that her case overall was “devoid of verifiable detail or fact” and “lacking in veracity and credibility”.
The delegate found “particularly implausible” the applicant’s claim that (having been baptised in June 2005) “by November, 2005 the church congregation had commenced building a new and bigger meeting place as a result of her proposal, under the guise of being an establishment for the “Elder People’s Association”.” The delegate did not accept that “as a newly baptised member of an underground Catholic Church [the applicant’s] first priority would be to propose and arrange for the building of a new meeting place” (rather than the study of and participation in Catholicism) and also referred to the fact that the applicant did not profess any particular skills in the area of management or construction and that if the congregation was of the opinion that they required a bigger meeting place this was “a decision they could have made without a proposal from the applicant”.
Importantly, the delegate concluded:
Overall I find the applicant’s claims devoid of verifiable detail or fact, scant in nature and substance and based on the evidence at hand, I am not satisfied that the applicant was a member of an underground Christian (Catholic) church or the moving force behind the planning and building of a larger place of worship for her congregation or that she had previously been detained and mistreated by the Chinese authorities. I find the applicant’s submission lacking in veracity and credibility.
The delegate’s decision sufficiently indicated to the applicant that everything she said in support of her application was in issue. In addition, the delegate drew particular attention to the absence of verifiable detail or fact. Notably, the applicant addressed the “building” and other aspects of her claims in some detail in the statutory declaration she submitted to the Tribunal, although she did not provide any corroboration of her claims about buying land and obtaining planning permission. The Chinese witness statements did not address what the applicant in fact claimed she did in this respect. The applicant had the opportunity to address the credibility of all her claims, including her claimed involvement with the purchase of land and building of a new meeting place at the Tribunal hearing.
Insofar as the applicant contended that the absence of corroborative evidence in relation to the building had to be expressly put to her at the hearing, as Perram J stated in SZMUK (at [15]):
It is true that the Tribunal was not obliged to point out the weaknesses in an appellants’ case to them.
However his Honour (at [15]) did not regard that principle as being apposite to the case before him because in that case:
what the Tribunal did was to reject uncontradicted third party material on the basis of an assumption – itself unproven before the Tribunal – that there had been no complaint by the SLPP.
Hence in SZMUK (at [16]):
…the important matter is that the absence of evidence upon which the Tribunal acted was a direct result of the Tribunal not indicating to the appellants that it would not accept the article of 2 July 2008 unless corroborated by the SLPP. The appellants not being warned in that way took no steps to prove that the SLPP had also raised the matter. To conclude in those circumstances that the article’s veracity was to be rejected because it had not been corroborated by the SLPP resulted in a hearing which was unfair, in my opinion, seriously so.
It was in that context that Perram J applied the principle that when a decision maker decided a case “by reference to an issue which the party before it could not be reasonably expected to have anticipated” (at [17]) this was a denial of procedural fairness.
Similarly, in SZBEL the Tribunal had unaccountably rejected two aspects of an applicant’s case which had been accepted by the delegate and which had not been questioned by the Tribunal during the hearing. This was said to be procedurally unfair.
However, this is not a case in which there was uncontradicted third party material before the court as to the applicant’s claimed ownership of land or the construction permission she claimed she and her husband had obtained. The Tribunal did not make any assumption of the nature considered in SZMUK. Nor did the Tribunal reject aspects of the applicant’s case that had been accepted by the delegate.
If the Tribunal reasoning had turned on some item of evidence contrary to the applicant’s claim, the Tribunal may have had an obligation to canvass that with her (under s.424A of the Act). However the rejection of this part of the applicant’s claims turned not on some item of evidence, but rather on a lack of evidence to support them. The Tribunal was not obliged to give the applicant a running commentary on what it thought about the evidence presented to it (see SZBEL at [48]) or “expose all of [its] thought processes to scrutiny by the applicant, as part of the hearing” (SZHKA at [7]). SZMUK does not lead to a different result. In that case the appellants were not put on notice that the factual correctness of an item of independent information (the article upon which they relied) was in contest because of the absence of corroborative evidence from the SLPP. In SZMUK there was a plank of the appellants’ claim which no one had told them was in doubt, so that it was not simply a matter of the Tribunal not exposing its concerns about the lack of evidence of a particular kind, but rather a case in which there was no warning that a body of material was not going to be accepted.
There is also a distinction between issues which are questions for determination and the material or lack of material that led the decision maker to decide those issues one way or the other. In SZDFZ what was in question was a reconsideration of issues previously resolved in favour of the appellant by the Tribunal as originally constituted. However what was said in that case about the need for flexibility in describing “issues” for the purpose of s.425, does not remove any distinction between “issues” and evidence or material. The particular reason why the Tribunal found that the building claim was implausible is not in itself one of the “issues arising” in the relevant sense.
This is not a case in which no indication was given to the applicant that the part of her claim about involvement in organising a building for the congregation was doubted. The applicant knew from the delegate’s decision that this part of her claim was doubted and that she had to persuade the Tribunal about it. The uncorroborated evidence she put before the Tribunal in relation to her claims about involvement in a new meeting house did not satisfy the Tribunal of that aspect of her claims and contributed to the adverse credibility finding having regard to the nature of those claims, the likely availability of material such as land title details or building permission documentation in circumstances where the applicant had provided other documentation in relation to her husband’s death and government action in relation to her breaches of the one child policy.
No failure to comply with s.425 of the Act has been established by the applicant. This ground is not made out.
Section 91R(3)
The third ground relied upon by the applicant was raised in a second further amended application filed in court on 10 February 2010 and was not addressed in pre-hearing written submissions. Counsel for applicant made oral submissions in relation to this ground that were responded to in post-hearing written submissions. It is as follows:
The Tribunal wrongfully disregarded the applicant’s conduct in participating in church activities in Australia in reliance upon s 91R(3) of the Act as that section had no application to that conduct because the Tribunal was not engaged in a chain of reasoning leading to a determination in favour of the applicant which was based in whole or in part on inferences drawn from that conduct.
Counsel for the applicant pointed to that part of the Tribunal decision in which the Tribunal accepted that the applicant had started attending the Catholic Church in Australia some eight months after her arrival, but, in light of its finding that she had not been truthful about her church activities in China or about having been detained in China for that reason, was not satisfied that the applicant had participated in church activities in Australia otherwise than for the purposes of strengthening her claims. The Tribunal found therefore that that conduct must be disregarded by it in determining whether the applicant had a well-founded fear of being persecuted for a Convention reason in China.
It is clear that the Tribunal was purporting to apply s.91R(3) of the Migration Act, which is as follows:
For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol - refugees_protocol.
The applicant contended that s.91R(3) requires conduct to be disregarded only if it would be part of a chain of reasoning leading to the applicant being granted a protection visa and that as the Tribunal was not engaged upon any such reasoning in this case it erred by disregarding the applicant’s participation in church activities in Australia in reliance upon s.91R(3).
Counsel for the applicant relied on what was said to be one of the majority lines of reasoning in Minister for Immigration and Citizenship v SZJGV and Another (2009) 238 CLR 642; [2009] HCA 40 in support of this interpretation of s.91R(3) of the Act.
In SZJGV French CJ and Bell J on the one hand and Crennan and Kiefel JJ on the other hand, reached the same conclusion insofar as their Honour rejected the construction of s.91R(3) adopted by the Federal Court and held that if the condition in para (b) of s.91R(3) was not met, s.91R(3) required evidence of conduct engaged in by the visa applicant in Australia to be disregarded only to the extent that it would support the visa applicant’s claim to have a well-founded fear of persecution. Their Honours did not accept that s.91R(3) prohibited the Tribunal in making the determination contemplated in para 91R(3)(a) from drawing inferences adverse to an applicant based on his or her conduct in Australia unless the condition referred to in para 91R(3)(b) was satisfied.
Relevantly, the reasons of French CJ and Bell J were said to depend primarily on the construction of para (a) of s.91R(3) (at [4]), on the basis that, consistent with the legislative purpose of s.91R(3), the section should be construed to avoid the result that conduct in Australia adverse to an applicant’s credibility had to be disregarded (at [9]).
In that context their Honours rejected a reading of para (a) by which “whether” meant “whether or not” as such construction “would apply the command of the sub-section to all processes of reasoning which could lead to determinations favourable or unfavourable concerning the existence of an asserted well-founded fear of persecution” (at [10]). The applicant relies on what French CJ and Bell J stated (at [12]) after outlining a submission that the words “in determining” in s.91R(3) referred to a process undertaken after findings of fact had been made:
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 [16]. 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.
The applicant submitted that on this approach, rather than operating throughout the reasoning process of the Tribunal to prevent regard being had to conduct in Australia led in support of or to strengthen the applicant’s claims for refugee status, s.91R(3) should only be applied at the point at which the Tribunal had “determined or come into” a chain of reasoning which would enable it to say that the person should be given refugee status where that chain of reasoning was based in part on a person’s conduct in Australia. It was submitted that this was the point at which the Tribunal must consider the operation of s.91R(3) and apply the test in s.91R(3)(b) as to whether or not the sole purpose of that conduct was to strengthen the person’s claims and, if it was, to disregard the conduct and reassess the applicant’s claims.
Crennan and Kiefel JJ found in SZJGV (at [27]) that “on its proper construction s91R(3) does not require a person’s engagement in such conduct [in Australia], and the reason for it, to be disregarded by a decision-maker for all purposes in connection with the determination of an application for a protection visa”.
As their Honours stated at [64]:
The approach of the Full Court was to regard sub-s (3) as engaged once the inquiry in para (b) was answered. This does not give sufficient weight to the underlying objective of sub-s (3). It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person’s claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account.
Crennan and Kiefel JJ concluded at [65] that it was “essential that the object of s91R(3) and the mischief it was intended to remedy be taken into account in construing it” so that the section “be read more narrowly” so that “It should not be read as requiring evidence of a person’s conduct in Australia, or that person’s motive for that conduct, to be disregarded for any purpose in connection with the determination of their application for a protection visa. Evidence of that conduct and findings about motive may be applied to discredit the applicant’s claim.”
The applicant submitted that on this reasoning the operation of s.91R(3) extended to all conduct in Australia “if it is determined that evidence of the conduct would strengthen the persons (sic) claim” whether or not it was proposed to make a determination in favour of the applicant and that the section operated through the reasoning process of the Tribunal to prevent regard being had to conduct in Australia that would strengthen the person’s claim unless para 91R(3)(b) was satisfied. It was conceded that on this basis there was no misapplication of s.91R(3).
It was submitted however that the correct and preferable approach was that taken by French CJ and Bell J and that this court could and should adopt that approach in determining the issue of the time at which s.91R(3) operated as this did not conflict with the outcome of SZJGV (see Re Tyler and Others; Ex parte Foley (1994) 181 CLR 18; [1994] HCA 25 at [37] – [38] per McHugh J).
In effect, it was submitted that while SZJGV had determined the operation of s.91R(3)(b) in relation to the sole purpose test, there was no ratio in relation to how and at what point of time s.91R(3)(a) operated, given what was said to be the divergent reasoning of the two majority judgments.
Counsel for the applicant acknowledged that either suggested construction of s.91R(3) would extend to conduct that strengthened the claims of the applicant which was taken into account in a chain of reasoning which would lead to a determination in favour of the applicant and that in such a case the conduct should be disregarded if the threshold in s.91R(3) was not met. However it was submitted that the conduct in this case did not fall within the area of overlap of the two constructions, as there was no proposed chain of reasoning by the Tribunal leading to a determination in favour of the applicant.
Rather, it was contended that the only chain of reasoning apparent in the Tribunal’s mind in this case was to affirm the delegate’s decision. On this basis it was submitted that the Tribunal had erred in considering s.91R(3) and that by disregarding the applicant’s conduct in Australia in the course of its reasoning in reliance upon s.91R(3) the Tribunal had disregarded information improperly, because it was not the occasion for s.91R(3) to operate.
The applicant submitted that this misconstruction of s.91R(3) affected the Tribunal’s reasoning process and prejudiced the applicant because as a result the Tribunal had quarantined and disregarded the applicant’s conduct in attending church in Australia from the assessment of her credibility and of whether she was a Catholic in China. It was contended that church attendance in Australia was otherwise corroborative and probative in assessing whether an applicant was a practising Catholic in China and that if it had been taken into account it might have changed the Tribunal’s assessment of that issue and that had the Tribunal’s assessment of whether the applicant was a practising Catholic in China changed, thereby supporting a proposed chain of reasoning that would lead to a determination in favour of the applicant, the Tribunal’s assessment under s.91R(3)(b) might also have changed, as the applicant’s Catholic practise in Australia could have been found to be for the purpose of furthering her existing Christian beliefs.
In post-hearing written submissions, the first respondent contended that this ground addressed paragraph 88 of the Tribunal reasons which is as follows:
The Tribunal accepts that the applicant started attending a Catholic Church in Australia in about October 2008, some eight months after her arrival in Australia. The Tribunal has considered the letter from Fr McGee and the photographs provided by the applicant to the Tribunal. However, in light of the Tribunal’s finding that she has not been truthful about her church activities in China, or having been detained in China for that reason, the Tribunal is not satisfied that the applicant has participated in church activities in Australia otherwise than for the purposes of strengthening her claims. Therefore, that conduct must be disregarded by the Tribunal in determining whether she has a well-founded fear of being persecuted for a Convention reason in China.
The Minister submitted that while there may be some difference in the reasoning processes of the two joint judgments in SZJGV there was no material difference between the positions reached as to the effect of s.91R(3), insofar as it was held that if the condition in paragraph (b) of s.91R(3) was not met, the subsection required evidence of conduct engaged in by the visa applicant in Australia to be disregarded only to the extent that it would support the applicant’s claim to have a well-founded fear of persecution (French CJ and Bell J at [9] and [12] and Crennan and Kiefel JJ at [54] and [64]).
In this case the evidence that the applicant had attended a Catholic church in Australia was said to support her claim to be a Catholic. The first respondent submitted that as it was not logically capable of undermining that claim and the only possible relevance of such evidence was by way of support for the applicant’s claim for a protection visa, the Tribunal did not err by proceeding on the basis that such evidence was required to be disregarded.
The first respondent submitted that the exclusion of the evidence of church attendance in Australia precluded a “chain of reasoning” leading to the grant of a protection visa which the Tribunal would otherwise have been required to consider and that it was therefore beside the point that no such chain of reasoning was evident in the Tribunal’s reasons.
In any event it was submitted that if the Tribunal had erred in the application of s.91R(3) such error caused no prejudice to the applicant (and either did not go to jurisdiction or meant that relief should be refused on the basis that, if anything, any such error assisted the applicant) because the Tribunal properly disregarded the evidence of the applicant’s church attendance to the extent it would have supported her claims and even if it erroneously disregarded that evidence to the extent (if any) that it would have undermined her claims, the Tribunal was already comfortably satisfied, on the basis of other evidence, that her claims were fabricated.
For the reasons given below I am not satisfied that it has been established that the Tribunal impermissibly disregarded the applicant’s attendance at church in Australia as a result of misconstruction of s.91R(3).
While it would normally be preferable to determine whether there is a relevant material difference in the approaches taken in the High Court and, if so, which approach ought to be adopted, this ‘novel’ ground was raised for the first time at the start of an adjourned hearing. The applicant made oral submissions and both the first respondent and applicant filed brief post-hearing written submissions. In these circumstances there was limited opportunity for a meaningful exchange and elaboration at the hearing of the basis for the applicant’s submissions. As I am of the view that no jurisdictional error has been established on the approach suggested by the applicant I consider that it is not necessary to determine whether there are two different approaches in SZJGV and, if so, which is the correct or preferable approach. The applicant concedes that if s.91R(3) operates throughout the reasoning process of the Tribunal to prevent regard being had to conduct in Australia that would strengthen the person’s claim (unless para 91R(3)(b) is satisfied) no jurisdictional error would be established.
Proceeding however on the basis contended for by the applicant, I note that the applicant’s submissions did not address the question of what is required to demonstrate the existence of a proposed favourable chain of reasoning or how and at precisely what point in time the command in s.91R(3) that the decision maker “not apply any such chain of reasoning unless the condition in para (b) is satisfied with respect to the relevant conduct” (emphasis added) comes into effect on the approach taken in SZJGV by French CJ and Bell J at [12].
Insofar as the Tribunal was considering the applicant’s claims about what occurred in China and in that context was not engaged in a proposed chain of reasoning leading to a determination in favour of the applicant in determining whether the applicant was a person to whom Australia has protection obligations the criteria for a protection visa as required by s.65(1) of the Act, it is apparent that the Tribunal initially had regard to all the applicant’s evidence and claims but, for specific reasons it outlined, concluded that the applicant was not credible on her claims about religious persecution in China and was not satisfied that she left China because of her fear of persecution.
Thus it stated that it had “taken into account the applicant’s claims in her protection visa application, her evidence during her Departmental interview and before the Tribunal”. This would include her claims and evidence about participation in church activities in Australia, as is apparent from the Tribunal’s subsequent statement that it had “also considered the witness statements, photographs, the applicant’s psychological assessment report, and the adviser’s submissions”. Some of the witness statements and all of the photographs related to the applicant’s participation in church activities in Australia.
However, as set out above, notwithstanding the applicant’s claims and evidence, the Tribunal found that a number of matters considered cumulatively led it to conclude that the applicant was not truthful or credible in her “religious persecution claims” and on this basis was not satisfied with her claims about events in China, including that she practised the Catholic faith in China. This approach did not involve an impermissible disregard of conduct in Australia contrary to s.91R(3). The Tribunal was not obliged to refer expressly to the applicant’s participation in Catholic church activities in Australia in its reasoning in relation to matters of concern, even if s.91R(3) was not applicable in that context. The matters taken into account by the Tribunal as significant in assessing the credibility of the applicant’s claims were for it to determine. Its credibility finding was open to it for the reasons it gave on the material before it and neither the legislative “purpose nor Australia’s protection obligations under the Refugees Convention require that…conduct [in Australia] be disregarded where it is adverse to an applicant’s credibility” (SZJGV at [9]).
Not only did the Tribunal consider what weight to give to statements which purported to corroborate the applicant’s claims that she practised the Catholic religion in China in the light of its finding that she was not truthful about her religious persecution claims and that there was a fundamental lack of credibility within her evidence, but also it stated that it was of the view that had the applicant fled China in an effort to escape persecution because of her Catholic religion, she would have attended a Catholic church as soon as possible after her arrival in Australia and addressed her failure to attend church in Australia between February and October 2008. Whether or not the Tribunal was correct in concluding that inaction was not conduct and hence did not have to be disregarded under s.91R(3), it is not in dispute, post SZJGV, that the Tribunal is not required by s.91R(3) to disregard conduct adverse to an applicant’s claims or precluded from drawing adverse inferences based on that conduct.
Relevantly, if it is correct to say that the Tribunal could not disregard the applicant’s participation in church activities in Australia under s.91R(3) in reaching a conclusion about her religious persecution claims in China because it was not engaged in a favourable chain of reasoning in that respect, in this part of the Tribunal’s reasons for decision it did not disregard the applicant’s conduct in attending church from October 2008 under s.91R(3) in this part of its reasoning. What concerned it however was the fact that she did not attend church until eight months after her arrival in Australia.
Importantly, the Tribunal’s findings to this point were sufficient to address her claims to have been a Catholic in China and to have experienced religious persecution on that basis, and the Tribunal did not “wrongfully disregard” the applicant’s conduct under s.91R(3).
While the Tribunal then made the s.91R(3) finding that the applicant’s participation in church activities in Australia must be disregarded as it was not satisfied that this was otherwise than for the purpose of strengthening the applicant’s claims, such finding may be seen as addressing a possible chain of reasoning leading to a determination in favour of the applicant based on inferences drawn from her conduct in Australia (that she was a Catholic in Australia and hence on that basis would practise the Catholic religion if she returned to China). As French CJ and Bell J stated at [12] “[t]he command in s.91R(3) … 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”. The manner in which the Tribunal proceeded was consistent with this approach to s.91R(3). Thus it went on to conclude that as it had found the applicant was not a Catholic in China and having disregarded her conduct in Australia, “there is nothing before the Tribunal that supports a finding that she would practise the Catholic religion if returned to China”.
No jurisdictional error is established on this basis. For the sake of completeness I note that if the operation of s.91R(3) extends to all conduct of the applicant in Australia if it is determined that evidence of the conduct would strengthen the person’s claim (whether the Tribunal proposed or expressly considered if it would make a determination in favour of the applicant or not) no jurisdictional error is established on that basis.
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application should be dismissed.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 30 July 2010
- AGLC
- SZNXI v Minister for Immigration [2010] FMCA 535
- Case
- [2010] FMCA 535
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Tribunal's decision-making process contained a jurisdictional error that could be grounds for judicial review. The court examined whether the Tribunal had given "proper, genuine and realistic consideration" to the applicant's case, as highlighted in previous cases such as NAIS and SZIIF. The court needed to determine if the Tribunal's failure to properly analyse inconsistencies and its handling of the applicant's history amounted to a failure to provide a fair hearing or to consider relevant matters, thereby denying the applicant procedural fairness. The court also considered whether the Tribunal's approach to the psychologist's report, as seen in SZKHD v Minister for Immigration and Citizenship, was sufficiently explained to avoid a jurisdictional error.
The court concluded that the Tribunal's decision did not contain a jurisdictional error warranting judicial review. The court found that there was no significant delay affecting the Tribunal's ability to properly consider the application, as had been the case in NAIS and SZIIF. Moreover, the court determined that the Tribunal had not failed to identify relevant issues in a manner that would constitute a jurisdictional error under Craig v The State of South Australia. The court noted that the Tribunal's approach to the psychologist's report, while not ideal, did not rise to the level of a jurisdictional error since there was no clear indication that the Tribunal had failed to consider the report meaningfully. Consequently, the court found no basis for judicial review on the grounds presented.
ORDERS:
1. The application be dismissed.
Orders
Orders of the court
1.
The application be dismissed.
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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