SZONE v Minister for Immigration & Anor

[2011] FMCA 420

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONE v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 420

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with the requirements of s.424AA of the Migration Act 1958 (Cth) – whether breach of s.424A of the Act.

Freedom of Information Act 1982 (Cth), s.41
Migration Act 1958 (Cth), ss.424A, 424AA, 425

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39

Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31

MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 438; [2008] FCA 319
MZXKH v Minister for Immigration and Citizenship [2007] FCA 663

MZYFH v Minister for Immigration and Citizenship and Another (2010) 188 FCR 151; [2010] FCA 559

SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

SZEOP v Minister for Immigration and Citizenship [2007] FCA 807
SZKLG v Minister for Immigration and Citizenship and Another (2007) 164 FCR 578; [2007] FCAFC 198

SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46
SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486
SZNKO v Minister for Immigration and Citizenship and Another (2010) 184 FCR 505; [2010] FCA 297
SZOLJ & Ors v Minister for Immigration & Anor [2011] FMCA 81

Applicant: SZONE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1483 of 2010

Judgment of: Barnes FM

Hearing dates: 2 February 2011 & 16 February 2011

Last date for submissions: 2 March 2011

Delivered at: Sydney

Delivered on: 9 June 2011

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 10 June 2010 in Tribunal case number 0907659.

2. A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 21 August 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1483 of 2010

SZONE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal made on 10 June 2010 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of the People’s Republic of China, arrived in Australia in October 2007.  He applied for a protection visa on 2 June 2009.  The application was refused and the applicant sought review by the Tribunal.  He attended three Tribunal hearings, provided the Tribunal with a written submission and responded through his migration agent to invitations from the Tribunal to comment on or respond to information.

3. The applicant did not make any claims concerning his life in China before he came to Australia.  His claims for protection arose from circumstances said to have occurred in connection with an April 2009 riot that took place in an Immigration Detention Centre (IDC) in Australia in which he was a detainee.

4. The applicant came to Australia in 2007 as a teenager and as the holder of a student visa.  His visa was cancelled after he stopped studying and he was detained in March 2009.  He unsuccessfully applied for a bridging visa.

5. In a statutory declaration accompanying his protection visa application the applicant described an incident in the IDC involving other Chinese detainees that occurred on a specified date in April 2009. 

   
   

   The applicant claimed that he was not involved in this incident (which the Tribunal accepted could be described as a riot), but that he feared “persecution by the Chinese authorities” on the basis that the authorities would “target [him] as a member of a particular social group of Chinese young men detained” in the IDC at the time of the riot and would also impute to him an anti-government political opinion on the ground that he was involved in activities (such as the riot) “which brought bad publicity” to China.  The applicant claimed to fear that due to the perception of the Chinese authorities that he was involved in the April 2009 riot, he would be arrested, questioned, gaoled and assaulted by prison guards and other inmates. 

6. The applicant claimed that following the April 2009 incident an officer from the Chinese Consulate General or Embassy in Australia contacted him by telephone in the IDC on two occasions.  In the statement accompanying his protection visa application he claimed that a “man from the Chinese Consulate General” had rung the IDC asking for him by name, had asked him “a number of questions about the incident” and had told him “to go back to China”.  He claimed that he did not know how the Consulate obtained his name.  He also claimed to fear that his father had been arrested in China as he was unable “to make contact with” his parents.

7. In his protection visa application, in response to a question about whether he had had “any contact with the Embassy, High Commission, Consulate or other representatives” of his home country in Australia, the applicant responded “yes” and gave the following details:

   Around 10 May officials from Chinese Embassy contacted me at the IDC to tell me that DIAC wanted me to go back to China.  They asked me about the incident at the IDC. 

8. The delegate’s reasons for decision recorded the applicant’s claim at interview that a person from the Chinese Consulate contacted him on two occasions, questioned him about the incident and on the second occasion told him to return to China.  The delegate also recorded that:

   The Departmental records indicate that the Chinese Consulate was in touch with the applicant to organise a valid travel document so he can depart Australia legally to China.  This information was confirmed by the applicant at interview. 

9. In the decision the delegate proceeded on the basis that the Chinese Consulate had been in touch with the applicant, but found that there was no credible evidence that he would be persecuted in China for the reasons claimed and was not satisfied that the applicant was a person to whom Australia had protection obligations. 

10. The applicant sought review by the Tribunal.  In a submission in support of the review application dated 11 November 2009 the applicant’s adviser referred to the delegate’s reference to the Chinese Consulate official having been in touch with the applicant to organise a valid passport for him and stated that the applicant did “not dispute that he was trying to organise a passport”, but that he had instructed that it was “the questions and comments” of the Consular official concerning the riot at the Detention Centre and “his statement that the…applicant must return to China” that had caused “the applicant to be fearful of his future should he be returned to China”.  These fears were said to have been “heightened” because the applicant was the only detainee questioned about the riot by the Chinese official and by his inability to make contact with his parents in China after he told his father about the riot and was advised not to return to China.  The applicant’s adviser claimed that the applicant feared that his father had been arrested and detained.

11. The adviser noted that “inappropriate questioning of Chinese nationals in immigration detention by officials from the Chinese government ha[d] been recognised as giving rise to well-founded fears of persecution” and that the riot in question had received publicity in the national media.  It was submitted that the applicant believed that this would be regarded as embarrassing by the Chinese government, which would take the riot to be anti-government and as damaging to China’s reputation.  On this basis it was claimed that the applicant would be “imputed with an anti-government opinion”.

12. The Tribunal held a hearing on 13 November 2009 which the applicant attended.  On 20 November 2009 the Tribunal invited the applicant to a further hearing (which he attended) on 16 December 2009.  The hearings are discussed further below.  On 25 November 2009 a Tribunal officer recorded in a file case note that he had telephoned a Department of Immigration officer in the IDC in which the applicant had been detained “to ask about the protocols for incoming telephone calls to detainees”.  The case note recorded that the officer advised that calls “did not go through an IDC officer”.  Rather, the caller selected the “zone” in the detention centre in which the particular detainee was located, “the telephone in that zone would ring and whichever nearby detainee answered it would pass the phone to the person being called”.

13. On 13 January 2010 the Country Advisor of the Country Advice Section of the Tribunal wrote to the Department’s Regional Manager at the IDC in which the applicant had been detained with some questions relating to the case of the applicant (who was identified by name, date of birth and place of detention as well as by detailed background information).  The Tribunal stated that it would be grateful for any information relating to the questions set out after the background information.  The Tribunal set out the applicant’s claims about his apprehension and detention and the occurrence of a riot involving about 20-25 Chinese nationals on a specified date in April 2009 while the applicant was asleep.  The Tribunal recorded that the applicant’s “clear evidence” was that he had no involvement in the riot.

14. The Tribunal put to the Department the applicant’s claims that “after the riot, an officer of the IDC gave him some documents and told him that these documents were for his departure” (from Australia) (referred to in the letter as claim five); that the same officer told him that an official from the Chinese Embassy or Consulate wanted to talk to him and “to wait for the call” (claim six); that the applicant thought that this officer had revealed his name to the Chinese Embassy or Consulate (claim seven); and that the applicant did not know the name of this officer but that he was “a male officer with darker skin” (claim eight).

15. It also set out the applicant’s claims that on or around 10 May 2009 the Chinese Embassy or Consulate rang a telephone in the applicant’s area of the IDC, that another Chinese detainee answered the phone, that the official asked for him by name and that he took the call.  According to the applicant the Embassy later called him one more time in the same manner.  The applicant’s claim was said to be that the Chinese Embassy officials told him that DIAC wanted him to go back to China, that he had rights under the law, that his departure formalities had been approved and that he needed to go back to China.  The applicant claimed that the Embassy asked him what happened in the riot, why it happened and how life was in the IDC.  The letter put to the Department that the applicant’s representative did not dispute that the applicant was trying to organise a passport and that the applicant’s evidence was that “the conversation in these contacts with the Chinese Embassy included the issue of organising a valid travel document for him to return to China”.  It also stated that as far as the applicant knew “he was the only Chinese detainee who was questioned by the Chinese Embassy about the riot”.

16. The letter summarised the basis for the applicant’s claimed fear of persecution as follows:

    The applicant essentially claims that he has well-founded fear of persecution if he returns to China because the publicity of the riot in the media has embarrassed the Chinese authorities and damaged its reputation and the authorities consider him to be responsible for the riot, and so if he returns to China he will be arrested, questioned, jailed, and assaulted by guards and other inmates of the prison. 

    This fear of the applicant is based on the facts that he was present in the IDC at the time of the riot; and the Chinese Embassy contacted him by his name and asked him what happened at the riot and why it happened and commented that he needs to go back to China and he was the only one they questioned about the riot and no other Chinese detainee was questioned about the riot. 

    The letter contained nine specific questions (set out in the Department’s response below) to be answered by the IDC/Department and concluded by stating that details of the case were not to be released to the Chinese authorities.

17. On 24 February 2010 a Manager, Field Operations, Status Resolution from the Department responded by email indicating that he or she had “collated” answers to the questions “using input from Detention Services officers” from the IDC and from Departmental officers and inviting the Tribunal to contact the writer if any of the responses required further explanation.  The response (including the Tribunal questions in bold) was as follows:

    1. Can you please comment on the claims 5, 6 and 7 above?

    See below. 

    2. During the period from [the date of the riot] until around May 2009 (when the applicant was released from the IDC), is DIAC aware if the Chinese Embassy or Consulate contacted the applicant?

    Detention Services are unaware of the Chinese Embassy or Consulate contacting the applicant.  DIAC Compliance had no need to contact the Chinese authorities regarding any travel document for [the applicant] as he had a valid travel document (see image of passport page attached). 

    3. Was any other Chinese male detainee contacted by the Chinese Embassy or Consulate during [the date of the riot] to May 2009 in connection with the riot?

    DIAC is unaware of any contact from the Chinese Embassy or Consulate to a person in detention in connection with the disturbance which occurred on …April 2009 (this incident could not be described as a riot). 

    4. Is the Chinese Consulate generally notified when Chinese citizens are detained or deported from Australia?

    No.  Chinese authorities may become aware that a person is in detention when DIAC applies for travel documents on behalf of clients. 

    5. If not, how could the Chinese Embassy or Consulate have gotten the applicant’s name?

    We do not know.  There is no evidence of any contact by DIAC officers. 

    6. To DIAC’s knowledge, did the Chinese Embassy or Consulate contact any Chinese detainees following the …April riot?

    This is not known.  It should be noted that any third party may call detainees at the detention centre without DIAC necessarily having any knowledge of this contact. 

    7. Does the Chinese Consulate directly contact their citizens in detention about travel documents or does DIAC handle all travel document issues with the Consulate?

    All contact regarding travel document applications is made by DIAC officers. 

    8. Did DIAC have to arrange any travel documents for the applicant with the Chinese Consulate?

    No.  [The applicant] had a passport which was valid for travel. 

    9. Please also provide some details of the riot, including the date and time, what actually happened, why it happened, who were involved, how many were involved, etc.

    The relevant incident report states:

    On …04.2009 at approximately 1845, an incident described as a Major disturbance occurred at the …IDC.  This disturbance involved 8 Chinese clients, most having been detained after the one compliance field operation.  Clients were causing damage to property in Zone E.  Negotiations ensured with the clients and 4 clients were removed to a restricted area at 2300 hrs. 
    The clients were frustrated with being in detention and did not accept responsibility for their actions.  The incident was managed by the DSP provider...Two clients were transferred to [another] IDC in order to ensure good order and security of the centre.

18. It is notable that this response did not specifically address the applicant’s claims about his contact with an IDC officer as requested by the first question put by the Tribunal. 

19. On 26 February 2010 a Tribunal officer confirmed with a Departmental officer at the IDC that “public telephones” were available to detainees “so detainees’ calls can easily be made without the assistance or knowledge of IDC administration”. 

20. The Tribunal then invited the applicant to attend a further hearing on 18 March 2010.  What occurred at this and the earlier hearings is discussed further below. 

21. On 19 March 2010 the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) (the Act) putting to him information in relation to inconsistencies in his evidence about his last contact with his father, about whether his conversations with the Chinese Embassy after the riot included organising his travel document and in relation to his claims about a debt in China. In particular, the Tribunal stated that while the adviser’s written submission and the applicant’s evidence at the second hearing clearly indicated that the applicant’s conversation with the Chinese Embassy after the riot included organising his travel document, the applicant’s evidence at the first and third hearings was that his two conversations with the Embassy or Consulate after the riot did not include anything about organising a travel document for him.

22. The applicant sought and was granted additional time to respond to this letter and to matters raised with him at the third hearing. In the interim, on 7 April 2010 the Tribunal again wrote to the applicant under s.424A of the Act putting to him an inconsistency in his claims and those of his adviser about whether the disappearance of his father and mother had any connection with the detention centre riot and what happened to him after the riot.

23. In response to a telephone request, the Tribunal provided the applicant’s adviser with a copy of the request for information it had sent to the Department on 13 January 2010 and the Departmental response of 24 February 2010.

24. After a further extension of time said by the Tribunal to be consistent with the statutory period of time, by letter dated 11 May 2010 the applicant’s adviser responded to the information given to the applicant by the Tribunal at the last hearing and by the letters of 19 March and 7 April 2010. 

25. Relevantly, the adviser submitted that the applicant instructed that “at no time ha[d] he said that he discussed organising a passport with the official from the Chinese Consulate” and that the submission to the contrary was the result of the adviser misunderstanding his instructions. 

26. In response to what was said to be the Departmental suggestion that there was no evidence of any contact with the Chinese Embassy or Consulate by Departmental officers concerning the applicant, the adviser drew the Tribunal’s attention to material in the applicant’s Departmental file which the adviser had obtained in response to a request under the Freedom of Information Act 1982 (Cth). It consisted of an extract from an email of 5 May 2009 with the subject “Immigration issues” from a named Departmental officer responsible for “Complex Cases and Travel” to other Departmental officers containing the following statement:

    [The applicant] – advised that he won’t call the Consul but will accept a call from the Consul, furthermore, he did not sign the removal notice, though he seemed to accept the fact that he is departing on the [date specified] with escorts (interpreter used).

27. The rest of the email was not released to the adviser.  The adviser submitted that this email extract provided “corroboration” of the applicant’s claim that he was contacted by an official from the Chinese Consulate after his name had been provided to the Consulate by a Departmental officer.  The adviser also referred to material in the Departmental file said to show that it was not until 8 May 2009 that the applicant first indicated that he was thinking about a protection visa application, consistent with his claims that he did not decide to apply for such a visa until after he was contacted by an official from the Consulate.  The adviser also took issue with the Departmental suggestion that the incident in the IDC could not be described as a riot.

The Tribunal decision

1. In its reasons for decision the Tribunal outlined the applicant’s claims and the material before it.  It summarised the evidence given by the applicant at the Departmental interview, including his claim that he did not know why the Chinese Embassy had called him and that a DIAC officer had given him some documents for his departure and said that an “official from the Chinese Embassy wants to talk to him and told him to wait for the call”.  The applicant’s evidence was that he thought “that this officer revealed his name to the Chinese Embassy”.  He did not know the officer’s name, but he “was a male officer with darker skin”.

2. The Tribunal also summarised the evidence given by the applicant and issues raised at the three hearings before it.  This is the only evidence before the court of what occurred in those hearings.  Relevantly, according to the Tribunal, at the first hearing the applicant claimed that from the time he was detained in March 2009 until the day before the riot, “no Chinese Embassy official made any contact with him”, but from the day of the riot until he was released in late May 2009 “the Chinese Embassy contacted him twice by telephone”.  The first occasion was said to be about seven days after the date of the riot and the second contact about three days afterwards.  He claimed that he had no role in the riot of April 2009 and was sleeping when it occurred. 

   
   

   He claimed that he was asked questions about the riot and asked to go back.  He was the only detainee contacted about the riot.  He feared he would be investigated and punished if he returned to China. 

3. The applicant reiterated to the Tribunal that an officer in the IDC, who gave him some material from the Chinese Embassy, told him that the Chinese Embassy would call him later and stated that “they did”. 

4. The Tribunal recorded that the applicant claimed that in the first call the male Embassy official told him he was calling from the Chinese Embassy, asked him questions about the riot (what happened and why it happened) and also about his life in the detention centre.  The official also said that the applicant’s visa had expired, “that his visa was useless”, “asked him what he was going to do” and told him that he had “rights under the law and to use his rights about other visas”.  The applicant claimed that in the second telephone contact the official said that “the papers were approved for his departure from Australia” and “gave him the date and time of his departure” and “told him to go back to China”.  Nothing else was discussed on that occasion.  The Embassy officials did not give him their names.  The Tribunal set out other evidence given by the applicant.

5. At the second hearing conducted on 16 December 2009 the applicant told the Tribunal that Chinese detainees had been involved in the IDC riot and also that the second conversation with the Embassy official included the issue of “organising a travel document for him to go back to China”.  He claimed that as far as he knew Embassy officials spoke only with him after the riot.  When he mentioned this to other Chinese detainees (about 10 to 15 of them) “they did not mention having been spoken to about the riot”.  He reiterated that his fear of being punished by the Chinese authorities was based on the two contacts the Chinese Embassy officials had with him after the riot and the conversations that took place on those two occasions.

6. The Tribunal also recorded that at the third hearing (held on 18 March 2010) it confirmed with the applicant its understanding that the source of his fear of persecution by the Chinese authorities came from the conversations he had with a person from the Chinese Embassy or Consulate in two contacts after the riot.  While he also discussed his concerns that he would have to repay a loan taken out by his parents to fund his study expenses in Australia if he returned to China (as his parents seemed to have disappeared), the applicant acknowledged that this issue was not related to his refugee claims.

7. The Tribunal recorded that it discussed with the applicant his previous evidence that while he was at the IDC the only contact he had with the Chinese Embassy or Consulate were two telephone contacts after the riot on a specified date in April 2009.  The applicant confirmed that this was correct, that the officers had asked for him by name, that he did not initiate these contacts himself and that he did not ask anyone else to contact the Chinese Embassy or Consulate on his behalf. 

8. The Tribunal also confirmed with the applicant his previous evidence that an officer at the IDC gave him some documents and told him they were for his departure; also said that an official from the Chinese Embassy or Consulate wanted to talk to him and to wait for the call; and that for this reason the applicant thought that this officer (whose name he did not know but was a male with darker skin) revealed his name to the Embassy or Consulate. 

9. The Tribunal recorded that in the applicant’s view the “only possibility” was that the Departmental Officer with the darker skin revealed his name and the fact that he was in the IDC at the time of the riot to the Chinese Embassy or Consulate. 

10. It told the applicant of the advice received from the Department in February 2010 in response to the January 2010 request.  The Tribunal recorded that it told the applicant that this advice stated that “no IDC or DIAC officer contacted the Chinese Embassy or Consulate about him while he was detained at the IDC”.  The Tribunal decision continued in relation to the third hearing:

    The Tribunal stated that the DIAC advice also stated the following:

    ·    That the IDC or DIAC never notifies the Chinese Embassy or the Consulate when a Chinese citizen is detained or deported from Australia. 

    ·    That the only time the IDC or DIAC may make Chinese authorities aware that a Chinese citizen is in detention is when a Chinese detainee does not have a valid travel document (including a passport).  Then DIAC or IDC applies for a travel document on behalf of the detainee. 

    ·    That all such travel document applications are made by DIAC officers. 

    ·    That the Chinese authorities never directly contact their citizens who require a travel document who are in a detention centre.  

    ·    That DIAC or IDC had no need to contact the Chinese authorities in regard to travel documents for the applicant because he had a valid travel document, being a passport.  The Tribunal also stated that he showed this valid passport at the previous Tribunal hearing and he agreed. 

    ·    That DIAC is unaware of the Chinese Embassy or Consulate contacting the applicant in the period from [the date of the riot] until he was released in about late May 2009. 

    ·    DIAC is unaware of the Chinese Embassy or Consulate making contact with any detainee in connection with the riot. 

    ·    That if the Chinese authorities became aware that the applicant was a detainee during the time of the riot, they did not get this information from any IDC or DIAC officer.  They did not divulge this information to the Chinese Embassy or the Consulate. 

11. The Tribunal also recorded that it raised with the applicant that on his instructions his representative had noted in a written submission that he did “not dispute that he was trying to organise a passport for him with the Chinese Consulate” and his evidence at the second hearing that one of the conversations with the Embassy or Consulate included organising a travel document for him.  The Tribunal asked the applicant why he was trying to organise a travel document when he already had a valid passport, in response to which the applicant was said to have stated that his conversation with the Chinese Embassy or Consulate did not include anything about organising a travel document for him. 

12. The Tribunal also put to the applicant the delegate’s observation that there was evidence (in the Departmental records) that the applicant had “repeatedly refused the request to return to China stating that he would like to remain in Australia” and his earlier evidence to the Tribunal that prior to the riot, in around March 2009, another detainee and a lawyer who assisted him with a bridging visa application had advised him that he could apply for a refugee visa.  The Tribunal put to the applicant that it was possible that “he was just exploiting the riot” and had “falsely created or manufactured” the “story” about the contact from the Chinese Embassy or Consulate. 

13. The applicant’s response was that the IDC asked him to go back to China three times.  The first time he agreed.  The second time he refused because he was applying for a bridging visa and the “third time he refused because it was after the riot and he was scared to return to China”.

14. The Tribunal recorded that it then gave what it described as “the following adverse information” to the applicant pursuant to s.424AA of the Act as follows:

    The Tribunal stated that the Tribunal may prefer to accept the information from DIAC rather than his evidence that DIAC or IDC did not reveal to the Chinese Embassy or Consulate his name and that he was detained at the time of the riot.  The Tribunal also stated that this information from DIAC may be the reason or part of the reason for the Tribunal to affirm the decision under review. 

    The Tribunal stated that this information from DIAC is relevant to the review because, if DIAC or IDC did not reveal his name and that he was a detainee in the IDC at the time of the riot to the Chinese Embassy or Consulate, then the Chinese Embassy or Consulate could not have contacted him because his evidence was that they could not have known about him being in the IDC at the time of the riot from information from any other source. 

    The Tribunal stated that the consequence of the information from DIAC may be that the Tribunal may find that the two phone calls from the Chinese Embassy or Consulate, which he claims to be the only source of his fear of persecution if he returns to China, never actually took place; that it is not true that these calls were made; and that it is an invented story or account by him to establish his refugee claims.  Accordingly, on the basis of the finding that these two calls were never made, the Tribunal may then find that he has no basis to fear risk of persecution if he returns to China and decide to affirm the decision under review to refuse his application for a Protection visa. 

15. The Tribunal explained the options available to the applicant to respond to this information and gave him an opportunity to discuss the method of response with his representative.  The applicant advised that he wished to respond in writing. 

16. Subsequently the Tribunal twice wrote to the applicant outlining the information to him under s.424A of the Act. The s.424A letters did not relate to or include the text of the request to or response from the Department. The Tribunal noted that on the adviser’s request it provided her with a copy of the correspondence with DIAC referred to in the hearing (on 7 April 2010). The adviser responded by letter of 11 May 2010.

17. The Tribunal stated in its account of the “Claims and Evidence” that the adviser’s explanations did not dispel the Tribunal concerns about inconsistencies in the applicant’s evidence about whether he last had contact with his father before or after the riot or about whether he discussed organising a passport or travel documents.  It also recorded that the adviser did not address an “inconsistency” in the applicant’s evidence consisting of evidence at the first hearing that he could be beaten up by people outside gaol for a large debt he owed and the fact that at the second hearing he disputed having made this statement, or an inconsistency in his claims about whether his father and possibly his mother were targeted for his perceived anti-government opinion in connection with the riot. 

18. In particular, the Tribunal described the adviser’s response about inconsistencies in the applicant’s evidence about whether his conversation included organising a travel document (put to him in the letter of 19 March 2010) and its “assessment” as follows:

    The representative stated that the applicant instructed her that at no time he discussed organising a passport with the Chinese Consulate and that the contrary note in her first submission that he discussed organising a passport with the Chinese Consulate was from her misunderstanding of his instructions and so this was her mistake. 

    The Tribunal accepts that the representative may have misunderstood the applicant’s instructions.  However, the applicant clearly gave the evidence at the second Tribunal hearing that he discussed organising a passport or a travel document with the Chinese Embassy or Consulate.  Therefore the explanation provided by representative does not dispel the Tribunal’s concern about the inconsistency of the applicant evidence about the issue. 

19. The Tribunal referred to the fact that in responding to the adverse information put to the applicant (which the Tribunal described as “DIAC’s advice that it did not reveal his name and that he was a detainee at the time of the riot to the Chinese Embassy or Consulate”) the adviser had referred to a Departmental internal email of 5 May 2009 from the Departmental file provided to the adviser pursuant to the FOI Act as corroboration of the applicant’s claims that he was contacted by a Chinese Consulate Official and “that his name was forwarded by a Departmental officer”.  The Tribunal stated:

    It is noteworthy that s.41(1) of the FOI Act states that: “A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).”

    The Tribunal has reviewed folio 224 of the applicant’s DIAC file number CLF2009/30123 and found that the rest of the email contained information about other people and the information that related to the applicant is exactly what DIAC has released to her and which is reproduced above. 

    The Tribunal does not agree with the representative’s interpretation of text in the email.  It does not accept that the text noting that the applicant advised that he will not call the Chinese Embassy or Consulate but he will accept a call from them, at all indicates that the DIAC has forwarded his name and provided information that he was a detainee at the time of the riot to the Chinese Embassy or Consulate. 

20. In the “Findings and Reasons” part of its decision the Tribunal summarised the applicant’s fears relating to the incident in the IDC in April 2009 (which the Tribunal accepted could be described as a riot) which involved as many as 20 Chinese detainees smashing windows and doors.  It stated that, despite his non-involvement, the applicant claimed to fear that the Chinese authorities would perceive that he had been involved and “target him as a member of a particular social group of Chinese young men detained” at the time and would “impute him with an anti-government political opinion on the grounds that he was involved in activities which brought…bad publicity to China”. 

21. The Tribunal noted that the applicant’s adviser had referred to information that: “inappropriate questioning of Chinese nationals in immigration detention by officials from the Chinese Government” had been “recognised as giving rise to well-founded fear of persecution”. 

22. It continued:  

    The core evidence of the applicant on which his claims to be a refugee rests is the content of the questions that the Chinese Embassy or Consulate asked him when they called him twice while he was detained at the IDC after the riot.  He accepted at a Tribunal hearing, noted above, that the only way the Chinese Embassy or Consulate could have known his name and that he was a detainee at the time of the riot was through an officer of the IDC who revealed these details concerning him to them.  Apart from his own oral evidence, the applicant has not provided any other evidence corroborating this claim.  For reasons noted above, the Tribunal does not accept the applicant’s representative’s submission that an internal DIAC email dated 5 May 2009 provides corroboration of this claim of the applicant. 

    Further, DIAC has advised that no officer of IDC or DIAC has revealed the applicant’s name or that he was a detainee at the time of the riot to the Chinese Embassy or Consulate.  The Tribunal prefers to accept DIAC’s advice over the applicant’s evidence and finds that no officer from the IDC or DIAC revealed his name and information that he was an inmate of the IDC at the time of the riot.  The Tribunal prefers DIAC’s advice over the applicant’s evidence due to the lack of any independent corroboration of his evidence and the unreliability of his evidence because the Tribunal found him not to be a credible witness on the basis of a number of inconsistencies in his evidence, noted above.

23. The Tribunal’s reference to finding the applicant “not to be a credible witness on the basis of a number of inconsistencies in his evidence” appears to be a reference to the asserted inconsistencies put to the applicant in the s.424A letters and its assessment of the responses to this information set out under the heading “Claims and Evidence”.  Notwithstanding that, the Tribunal did not make any overall adverse credibility finding in that part of its decision albeit it stated that the adviser’s replies to certain asserted inconsistencies did not dispel its concern “about the applicant’s credibility as a witness from evidence on this issue” and that the adviser did not respond to other concerns. 

24. The Tribunal then found that it did not consider that the applicant’s age or the fact that he had given evidence through a number of interpreters was “responsible for his inconsistent evidence”.  It noted that he had not raised any interpretation issue in any of the three hearings despite being asked about it.  The Tribunal did not consider that the lapse of time (less than a year) since the occurrence of the riot was in any way responsible for the applicant’s inconsistent evidence.  Nor did the Tribunal consider the inconsistencies to be “minor or trivial or peripheral”, or that it had taken a “stringent approach in assessing the applicant’s claims and credibility”. 

25. The Tribunal continued:

    The Tribunal cannot accept the core of the applicant’s evidence, and that is, the two phone calls made to him by the Chinese Embassy or Consulate, for reasons given above.  For reasons discussed above, the Tribunal is of the firm view that the applicant’s claim that the Chinese Embassy or the Consulate contacted him twice while he was detained in the IDC after the riot is a fabrication by him to establish his refugee claims.  The Tribunal finds that the Chinese Embassy or the Consulate did not make these two phone calls to him.  Accordingly, as the phone calls were not made, the Tribunal finds that there is no real chance that the Chinese authorities would be aware that the applicant was in the IDC at the time of the riot and no real chance that any action of the kind claimed by the applicant would be taken against him by the Chinese authorities.  The applicant had no adverse profile with the Chinese authorities before he left China to come to Australia in late 2007.  There is absolutely no evidence before the Tribunal indicating that he has an adverse profile with the Chinese authorities now.  Accordingly, the Tribunal finds that the applicant’s fear of persecution on this basis is not well-founded. 

26. The Tribunal also found that the applicant did not have a well-founded fear of persecution arising out of his parents’ unpaid debt, given his lack of knowledge about the debt and trouble he might experience in that respect, the absence of evidence that he had explored those issues and the inconsistent evidence on this issue at the Tribunal hearings.  The Tribunal was of the view that the applicant did “not actually have any fear of harm on the basis of the debt issue” and that in any case, as he had acknowledged, persecution arising on such a basis could not establish a refugee claim as it fell outside the definition of refugee in the Refugees Convention. 

1. The Tribunal concluded that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for reasons of being a member of a particular social group or on the basis of an imputed political opinion or for any other Convention-related reason.  It affirmed the decision not to grant the applicant a protection visa.

These proceedings

1. The applicant sought review by application filed in this court on 6 July 2010.  In his application he stated the following:

   1.  Chinese officer did called me while I was in…Detention Centre.

   2.  Chinese officer knew that I was detained.

   3.  I will be put in detention centre in China if I return back to China.

2. In an accompanying affidavit the applicant reiterated that “Chinese Consulate General officer” called him while he was in the Detention Centre.  The applicant did not file an amended application or written submissions.  As expressed, his claims do not point to any jurisdictional error by the Tribunal, but go to the merits of his case.  Merits review is not available in this court. 

3. At the start of the hearing the applicant took issue with the fact that the Departmental officer had not believed that someone from the Chinese Consulate called him.  It is apparent that he intended to take issue with the Tribunal’s rejection of his evidence and claims and his credibility.  

4. The solicitor for the first respondent submitted that no jurisdictional error was apparent and hence that the application must be dismissed. In particular, it was submitted that the Tribunal had complied with any procedural fairness obligations under the Act to put information to the applicant during the course of the hearing, pursuant to s.424A or by virtue of utilising s.424AA of the Act. In this context the first respondent submitted that in the third hearing the Tribunal had put to the applicant particulars of the information it had received in writing from the Department which was contrary to the applicant’s claims in relation to whether the Department or the IDC had revealed his details to Chinese authorities, that the Tribunal had given him clear particulars, ensuring that he understood the information’s relevance and that it had advised him that he could seek additional time to comment on or respond to the information (which he sought and which was allowed). It was submitted that no failure to comply with s.424A or s.425 or any other provision of Division 4 of Part 7 of the Act was apparent from a fair reading of the Tribunal’s decision record.

5. Before addressing these issues, I note that in the course of the hearing issues arose in relation to information from the Departmental file to which the delegate and the Tribunal referred which was not before the court.

6. The delegate referred to Departmental records showing “that the applicant had repeatedly refused the request to return to China as he “would like to stay in Australia”” and also stated that the Departmental records indicated “that the Chinese Consulate was in touch with the applicant to organise a valid travel document so he [could] depart Australia legally to China”. 

7. There is no such material in the court book.  The Departmental file is not before the court.  The solicitor for the first respondent was not able to identify any records addressing the latter issue other than the internal email which the applicant’s adviser only obtained in response to an FOI request.

8. The complete content of that email of 5 May 2009 was not initially before the court.  The Tribunal had stated in its reasons for decision that it had reviewed the whole of the email, “found that the rest of the email contained information about other people” and that the information that related to the applicant was “exactly” what the Department had released to the adviser.  The Tribunal also found that it did not agree with the representative’s interpretation of the text of this email or accept that the remark that the applicant had advised that he would not call the Chinese Embassy or Consulate but would accept calls from them indicated that the Department had “forwarded his name and provided information that he was a detainee at the time of the riot to the Chinese Embassy or Consulate” and thus provided corroboration of the applicant’s claim that the Chinese Embassy or Consulate would have known his name and that he was a detainee at the time of the riot through an IDC officer revealing these details. 

   
   

   It preferred DIAC’s advice, which was said to be that no officer of IDC or DIAC had revealed such information. 

9. The hearing was adjourned to enable the solicitors for the first respondent to put further evidence before the court.  Prior to the resumed hearing the first respondent filed an affidavit sworn by its solicitor annexing as a confidential exhibit a complete copy of the Departmental email of 5 May 2009 in question, from which it is apparent that nothing else in that email related to the applicant or to contact with the Consulate or was such as to give rise to any obligation on the Tribunal to make further inquiries in that respect (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39) or raise concerns about whether other matters in the email were relevant to the Tribunal’s assessment of that document. I am satisfied that, as the first respondent submitted, the other information in this email related entirely to other detainees and had nothing to do with the applicant or anything he did or said whilst he was in detention.

10. In addition, the solicitor for the first respondent addressed further the manner in which the Tribunal put to the applicant the advice it received from the Department of Immigration at the hearing in light of the requirements of s.424AA of the Act. The first respondent was also given (but did not take) the opportunity to file supplementary written submissions on this issue.

11. Sections 424A, 424AA and 425 of the Act are relevantly as follows:

    424AA If an applicant is appearing before the Tribunal because of an invitation under section 425:

    (a)  the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)  if the Tribunal does so--the Tribunal must:

    (i)  ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii)  orally invite the applicant to comment on or respond to the information; and

    (iii)  advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv)  if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    424A (1)  Subject to subsections (2A) and (3), the Tribunal must:

    (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)  invite the applicant to comment on or respond to it.

    (2)  The information and invitation must be given to the applicant:

    (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

    (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

    (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

    (3) This section does not apply to information:

    (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

    (b)  that the applicant gave for the purpose of the application for review; or

    (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    (c)  that is non‑disclosable information.

    425   (1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2)    Subsection (1) does not apply if:

    (a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c)     subsection 424C(1) or (2) applies to the applicant.

    (3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

Sections 424A and 424AA

1. The issue addressed by the first respondent and of primary concern in these proceedings is whether the Tribunal had breached s.424A of the Act in relation to the information it obtained from the Department dated 24 February 2010 which is set out at [17] above. There is no suggestion that the Tribunal put such information to the applicant in writing. Rather it is apparent from the Tribunal reasons for decision that it purported to rely on s.424AA of the Act in putting such information to the applicant in the hearing. I note that there is no suggestion that any other advice to the Tribunal from DIAC, apart from the advice dated 24 February 2010, provided the basis for the information put to the applicant in the third hearing held on 18 March 2010. The oral advice of 25 November 2009 related to the protocols for incoming phone calls to IDC detainees and that of 26 February 2010 related to the availability of public telephones.

2. The first respondent submitted that the place to start any inquiry as to s.424A or s.424AA of the Act was the reasons for decision. The High Court in Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 applied the principles in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 at [15] and SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 and subsequent Federal Court decisions in accepting (at [21]) that as stated in SZBYR at [15]:

   Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. 

3. The High Court in SZLFX also referred with approval to the distinction between information which “would” and that which “might” or “could” be the reason or part of the reason for affirming the decision under review (see SZLFX at [24] – [25] and MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 438; [2008] FCA 319 at [29] per Heerey J). Their Honours also agreed that, as the Full Court of the Federal Court pointed out in SZKLG v Minister for Immigration and Citizenship and Another (2007) 164 FCR 578; [2007] FCAFC 198 at [33], “s424A depends on the RRT's “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review” (see SZLFX at [24]).

4. It was submitted that in this case it was apparent from the Tribunal’s account of the information put to the applicant in the hearing after the Tribunal referred to s.424AA that the sole piece of information which the Tribunal sought to put to the applicant and considered as central to its decision and upon which it relied was the information that neither the Department nor the IDC had revealed the applicant’s name to the Chinese Embassy or Consulate or divulged that he was a detainee at the time of the riot at the Detention Centre. It was submitted that the Tribunal’s finding in relation to the totality of the applicant’s claims stemmed from its finding in that respect.

5. It was also contended that it was clear that in the third Tribunal hearing, in exercising its power under s.424AA of the Act, the Tribunal sought only to put to the applicant that particular information from the Department. This was said to be apparent from the fact that while earlier in the hearing the Tribunal had raised certain issues with the applicant about the information from the Department, when it turned to give adverse information to him pursuant to s.424AA at a later stage of the hearing, the only information specifically put to him under s.424AA was that the Tribunal may prefer to accept information from the Department (rather than the applicant’s evidence) that the Department or the IDC did not reveal to the Chinese Embassy or Consulate the applicant’s name and that he was detained at the time of the riot. The Tribunal recorded that it went on to explain the relevance and significance of it relying upon that information.

6. On this basis it was submitted that even if the Tribunal’s earlier summary of its account in the hearing of the Departmental responses to its questions might not be in the same terms as the actual responses, the consideration of whether there was a failure by the Tribunal to comply with the procedures under s.424AA of the Act (such that s.424A(2A) would not apply) was limited strictly to the particular information that was within s.424A(1) and did not and should not extend to all the other information that the Department provided to the Tribunal when it made its inquiries in relation to the applicant’s claims.

7. Thus it was contended that although the Tribunal had sought a variety of items of information from the Department, in essence, only questions four and five and the answers to those questions were relied upon by the Tribunal in its decision. 

8. Those questions and answers were as follows:

   4.  Is the Chinese Consulate generally notified when Chinese citizens are detained or deported from Australia?

   No.  Chinese authorities may become aware that a person is in detention when DIAC applies for travel documents on behalf of clients.

   5.  If not, how could the Chinese Embassy or Consulate have gotten the applicant’s name?

   We do not know.  There is no evidence of any contact by DIAC officers.

9. It was submitted that the Department did not use the word “never” in relation to whether it or the IDC notified the Chinese Embassy or Consulate when a Chinese citizen was detained or deported from Australia (but rather responded “No” to the question of whether the Chinese Consulate was “generally” notified in such circumstances, qualifying this with the response that Chinese authorities may become aware that a person was in detention when the Department applied for travel documents on their behalf) but, notwithstanding that distinction, the Tribunal properly put to the applicant that sometimes contact was made but only in circumstances to discuss a travel document (which, it was suggested, did not arise in this case) and that there was no other information from the Department that in some circumstances the Department or the Detention Centre officers would contact Chinese authorities about a detainee. 

10. It was submitted that when one looked at the information the Tribunal gave to the applicant it was not seeking to misrepresent the information and although it could have used different words, it was not called upon to use particular words but rather to put information to the applicant in a manner that the applicant could understand. 

11. In any event, the first respondent submitted that even if the information subject to the s.424A(1) obligation encompassed all the information given to it in the Departmental response of 24 February 2010, the Tribunal had not erred in putting to the applicant the effect of all the information given to it by the Department, as there was “no need” for the information to be provided “verbatim”. It was pointed out that both ss.424A and 424AA speak of “particulars” of information and submitted that while this did not mean that the Tribunal “may entirely misrepresent the information” that it had received, the court should be “slow” to construe what the Tribunal put to the applicant orally as an error in representing the effect of that information. 

12. The first respondent acknowledged that s.424AA required the Tribunal to put “clear particulars” to an applicant (see SZNKO v Minister for Immigration and Citizenship and Another (2010) 184 FCR 505; [2010] FCA 297), that this requirement had also subsequently been incorporated in s.424A of the Act and that the Tribunal’s obligation under s.424AA also required it to ensure as far as reasonably practicable that the applicant understood why the information was relevant to the review and the consequences of the information being relied on. In this context the first respondent submitted generally that the information had to be and was put to the applicant in a way that could be readily understood.

13. On this basis the first respondent submitted that, insofar as regard should be had to the earlier part of the Tribunal hearing (as recorded by the Tribunal) in which it put to the applicant the material provided to it by the Department, no jurisdictional error was apparent in this respect. 

14. The Tribunal purported to rely on s.424AA in relation to material from the Department received in response to its request of 13 January 2010. It did not put the Department’s response to the applicant in writing under s.424A of the Act.

15. It is the case that after the hearing the Tribunal provided the applicant’s adviser with a copy of the Tribunal’s request to the Department and its reply. However that was not done in the context of putting that information to the applicant under s.424AA (or s.424A) but rather in response to a request from the adviser for certain documents in a telephone conversation with a Tribunal officer. There was no suggestion to the contrary from the first respondent.

16. Hence what is in issue is whether, if an obligation under s.424A arose, the Tribunal met the requirements of s.424AA of the Act in the hearing.

17. The first respondent did not dispute that the information in response to Tribunal questions four and five was information that would be the reason or part of the reason for affirming the decision under review within s.424A(1) of the Act.

18. It is necessary to determine first whether the rest of the Department’s response to the Tribunal’s query was also information that would be the reason or part of the reason for affirming the decision under review.

19. As the first respondent submitted, the starting point for such an inquiry is the Tribunal reasons for decision.  It can be inferred from the Tribunal findings and reasons that that part of the Departmental response on which the Tribunal based its finding that DIAC had advised that “no officer of IDC or DIAC has revealed the applicant’s name or that he was a detainee at the time of the riot to the Chinese Embassy or Consulate” (which in turn was relied on by the Tribunal to find that no officer had made such a revelation, relevant to its finding that it did not accept that the Chinese Embassy or Consulate contacted the applicant twice by telephone while he was detained in the IDC after the riot) was information that would be the reason or part of the reason for affirming the decision under review. 

1. In the Findings and Reasons part of its decision the Tribunal’s reference (in relation to rejection of the applicant’s evidence) to “reasons given above” as well as to “inconsistencies” (which, as pointed out in SZLFX at [26], are not within s.424A) is not entirely clear. In part it appears to incorporate views expressed by the Tribunal in setting out the claims and evidence.

2. Further, even if the Tribunal’s rejection of the “core” of the applicant’s evidence that two phone calls were made to him by the Chinese Embassy or Consulate and the finding that there was “no real chance that the Chinese authorities would be aware that the applicant was in the IDC at the time of the riot” were based, at least in part, on the finding that DIAC had advised that “no officer of IDC or DIAC ha[d] revealed the applicant’s name or that he was a detainee at the time of the riot to the Chinese Embassy or Consulate”, the answers to questions four and five of the Departmental advice were not expressed in those terms.

3. The scope of the information subject to the s.424A(1) obligation is not determined by reference to what was in fact put to the applicant under s.424AA or s.424A (even if it was the case that the Tribunal was not purporting to put all of what it said about the DIAC advice in the hearing to the applicant under s.424AA), but rather by whether it can be inferred that the Tribunal considered certain information would be the reason or part of the reason for affirming the decision under review.

4. The actual information from the Department was not expressed in the terms in which it was put to the applicant in the context of addressing his belief that a particular Departmental officer who gave him documents about his departure had said that an official from the Chinese Embassy or Consulate wanted to talk to him and to wait for the call, had revealed his name to the Embassy or Consulate and that the Embassy or Consulate could not have known about him being in the IDC from any other source.  The Tribunal’s conclusions were also based on its assessment of information that was not expressed in the terms referred to in the Findings and Reasons. 

5. In the circumstances it can also be inferred from the Tribunal reasons for decision, including its account of the third hearing, that the whole of the Departmental advice constituted information that would be the reason or part of the reason for affirming the decision under review.  The whole of the information from the Department dated 24 February 2010 was the information on which the Tribunal presumably based its view of the essence of the advice.

6. In this context it is important to have regard to the fact that the obligation under s.424AA is to provide “clear particulars” of the information and to ensure (as far as reasonably practicable) that the applicant understood the significance of those matters to the decision under review. 

7. If, as in this case, the Tribunal puts to an applicant a summary of its conclusions from or interpretation of information (rather than the information itself), it is critical that the Tribunal’s account of the information is accurate and that its relevance is sufficiently explained to give the applicant the requisite meaningful opportunity to comment on or respond to the information itself (see SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46 at [71] – [72] and SZNKO at [27]).

8. The nature and scope of the obligation under s.424AA was considered by Bromberg J in MZYFH v Minister for Immigration and Citizenship and Another (2010) 188 FCR 151; [2010] FCA 559. His Honour stated at [33] – [35]:

   For the Tribunal properly to invoke the facility provided by s 424A(2) and proceed orally under s 424AA rather than in writing under s 424A, it must provide to the visa applicant “clear particulars” of any information that the Tribunal considers would be the reason, or part of the reason, for affirming a decision that is under review. Additionally the Tribunal must ensure that, as far as is reasonably practicable, the visa applicant understands why the information is relevant to the review and the consequences of the information being relied upon for the decision under review: s 424AA(a) and (b)(i): and see Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 per Branson, Finn and Bennett JJ at [31]. Thereafter, the visa applicant must be given a “meaningful opportunity” to comment and respond to the information, including by seeking additional time and, if the Tribunal considers it reasonably necessary, through an adjournment of the hearing: s 424AA(b)(ii)-(iv) and SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 per Flick J at [23] and [27].

   As the Full Court said in SZMCD at [71]-[72], the same policy and purpose underpins s 424AA as that which underpins s 424A. Relevantly, the policy and purpose is that the Tribunal should be compelled to:

   (a) put the visa applicant on fair notice of critical matters of concern to the Tribunal;

   (b) ensure that the visa applicant understands the significance of those matters to the decision under review; and

   (c) give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

   The requirements of the Tribunal under paragraph (a) and (b)(i) of s 424AA are not relevantly distinguishable from the requirements in s 424A(1)(a) and (b) (other than for the fact that the former deals with oral communication and the latter with written communication). Many of the authorities which I refer to deal with the Tribunal’s obligations under s 424A. Given the common textual and purposive characteristics of s 424A and 424AA, those authorities are helpful to an analysis of the requirements of s 424AA.

9. The concerns addressed by Bromberg J at [38] – [41] by reference to earlier decisions of Flick J are of particular relevance.  His Honour stated:

   The nature and content of the obligations upon the Tribunal under s 424A(1) were recently summarised by Flick J in SZMTJ v Minister for Immigration and Citizenship and Anor (No 2) [2009] FCA 486. I respectfully agree with his Honour’s observations at [52] that each of the requirements of s 424A are not to be treated as though they were divorced one from the next. The greater degree of clarity in the particulars of any information provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. The same observations are applicable to s 424AA.

   In relation to s 424A(1)(a), Flick J at [45] emphasised that a visa applicant is to be provided with “sufficient specificity” of the information to be relied upon. Language which fails to identify information with “sufficient specificity” and which fails to set out information “unambiguously” may fail to comply with s 424A(1)(a): see for example MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] per Tracey J.

   In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297, Flick J traced the legislative history of the requirement for particulars in s 424A. His Honour noted that prior versions of s 424A had referred merely to “particulars of any information”. The requirement that “clear particulars” be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth). As his Honour noted, that change in language cannot be ignored. The change came at the same time that s 424AA was introduced and thus the facility provided to the Tribunal to communicate orally its intended reliance upon “information”, rather than in writing under s 424A. Although the language of s 424A(1)(a) was also brought into line with that of paragraph (a) of s 424AA, it may be inferred that the change from “particulars” to “clear particulars” was somewhat motivated by the concern that extra care be taken in the giving of particulars, especially as particulars could now be given orally. That concern recognises that the opportunity to reflect and digest particulars given orally is more limited than when particulars are given in writing.

   As Flick J further noted at [44] of SZMTJ, s 424A(1)(b) imposes what has been said to be “strict requirements”. His Honour referred to the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807, where Rares J said that s 424A(1)(b) required the Tribunal to ensure, as far as reasonably practical, that it identified to the visa applicant why the information was relevant to the review. Such an identification is necessary to avoid the visa applicant being left to choose between uncertain inferences that might otherwise be available. The visa applicant needs to be told by the Tribunal why the information is relevant to the review. That obligation is not fulfilled if the Tribunal leaves it to chance that the visa applicant appreciates the relevance of the information from the course of the hearing, or from other circumstances surrounding the way in which the review was being conducted: SZEOP at [36].

10. Further, as Flick J stated in SZNKO at [23]:

    There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context it which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that s 424A and s 424AA require the disclosure of so much as to ensure that the opportunity to “comment... or respond...” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.

11. In the present case the importance of these principles lies in the fact that the “particulars” of the Departmental information given to the applicant by the Tribunal in the hearing were not exactly the same as the actual information. That is so whether the information subject to s.424A extended to the whole of the Departmental response or was limited to the answers to questions four and five as the first respondent submitted.

12. In fact, in this case, given the differences between the actual advice and what was put to the applicant I am of the view that it can be inferred that it was the Tribunal’s assessment of all of the information provided by DIAC (not simply the responses to questions four and five) which it purported to put to the applicant under s.424AA.

13. In any event, the point at which reliance was placed on s.424AA in the hearing cannot be seen as distinct from what occurred earlier in the hearing, when the Tribunal (incorrectly) outlined what it said was the advice from DIAC.

14. The Tribunal recorded (at [61] – [62]) the following about what it put to the applicant at the third hearing:

    The Tribunal then stated that the Tribunal received advice from DIAC in February this year in response to a request it made in January this year.  This advice states that no IDC or DIAC officer contacted the Chinese Embassy or Consulate about him while he was detained at the IDC. 

    The Tribunal stated that the DIAC advice also stated the following:

    ·    That the IDC or DIAC never notifies the Chinese Embassy or the Consulate when a Chinese citizen is detained or deported from Australia. 

    ·    That the only time the IDC or DIAC may make Chinese authorities aware that a Chinese citizen is in detention is when a Chinese detainee does not have a valid travel document (including a passport).  Then DIAC or IDC applies for a travel document on behalf of the detainee. 

    ·    That all such travel document applications are made by DIAC officers. 

    ·    That the Chinese authorities never directly contact their citizens who require a travel document who are in a detention centre. 

    ·    That DIAC or IDC had no need to contact the Chinese authorities in regard to travel documents for the applicant because he had a valid travel document, being a passport.  The Tribunal also stated that he showed this valid passport at the previous Tribunal hearing and he agreed. 

    ·    That DIAC is unaware of the Chinese Embassy or Consulate contacting the applicant in the period from 20 April 2009 until he was released in about late May 2009. 

    ·    DIAC is unaware of the Chinese Embassy or Consulate making contact with any detainee in the IDC in connection with the riot. 

    ·    That if the Chinese authorities became aware that the applicant was a detainee during the time of the riot, they did not get this information from any IDC or DIAC officer.  They did not divulge this information to the Chinese Embassy or the Consulate. 

15. The Tribunal decision (at [67] – [71]) indicates that it then stated that it put to the applicant “adverse information…pursuant to s.424AA of the Act”.  This information related to the DIAC or IDC not revealing the applicant’s name or the fact that he was detained to the Chinese Embassy or Consulate.  The Tribunal stated that it:

    …may prefer to accept the information from DIAC rather than his evidence that DIAC or IDC did not reveal to the Chinese Embassy or Consulate his name and that he was detained at the time of the riot.  The Tribunal also stated that this information from DIAC may be the reason or part of the reason for the Tribunal to affirm the decision under review. 

    The Tribunal stated that this information from DIAC is relevant to the review because, if DIAC or IDC did not reveal his name and that he was a detainee in the IDC at the time of the riot to the Chinese Embassy or Consulate, then the Chinese Embassy or Consulate could not have contacted him because his evidence was that they could not have known about him being in the IDC at the time of the riot from information from any other source. 

    The Tribunal stated that the consequence of the information from DIAC may be that the Tribunal may find that the two phone calls from the Chinese Embassy or Consulate, which he claims to be the only source of his fear of persecution if he returns to China, never actually took place; that it is not true that these calls were made; and that it is an invented story or account by him to establish his refugee claims.  Accordingly, on the basis of the finding that these two calls were never made, the Tribunal may then find that he has no basis to fear risk of persecution if he returns to China and decide to affirm the decision under review to refuse his application for a Protection visa. 

16. In that context, the identification of the particulars of the information and whether this was done with sufficient clarity and specificity must be seen in light of the earlier elaboration on that information. While brief particulars in the context of a reference to s.424AA may suffice if the information has been spelt out in detail earlier in the hearing, it follows that inaccuracies in the earlier description will be relevant to a consideration of whether “clear” particulars have been provided in the circumstances that ensure the applicant understands the significance of these matters to the decision under review.  As Flick J observed in SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486 at [52], the requirements of s.424AA are not to be treated as though “divorced” one from the next.  In this case the particulars provided failed to set out the information unambiguously.  Rather, the import of the Department’s somewhat qualified and limited response to the particular questions asked of it by the Tribunal was overstated. 

17. Considered in context, it is apparent that the Tribunal’s reference to “information from DIAC” was based on the information described at an earlier point in the hearing.  However, the Department did not advise the Tribunal that “no DIAC or IDC officer contacted the Chinese Embassy or Consulate” about the applicant while he was detained as the Tribunal had told the applicant.  Its advice was that DIAC compliance had “no need” to contact the Chinese authorities regarding any travel document for the applicant and that there was “no evidence” of any contact by DIAC officers.  Nor did it advise that IDC or DIAC “never” notifies the Embassy or Consulate when a Chinese citizen is detained or deported; that “the only time” the IDC or DIAC may make the Chinese authorities aware a Chinese citizen is in detention is when the detainee does not have a valid travel document; that the Chinese authorities “never directly contact their citizens who require a travel document who are in a detention centre”; or that “if the Chinese authorities became aware that the applicant was a detainee during the time of the riot, they did not get this information from any IDC or DIAC officer.  They did not divulge this information to the Chinese Embassy or the Consulate”. 

18. In each of these respects the Tribunal overstated or expressed in more definite form the response actually provided by the Department to the questions it asked when describing the advice to the applicant at the hearing.  In relation to question four: “Is the Chinese Consulate generally notified when Chinese citizens are detained or deported from Australia?” (emphasis added), the Department’s response was “No.  Chinese authorities may become aware that a person is in detention when DIAC applies for travel documents on behalf of clients”.  This is not the same as the positive statement the Tribunal put to the applicant at [68] that “DIAC or IDC did not reveal to the Chinese Embassy or Consulate his name and that he was detained at the time of the riot”. 

19. There was no positive statement by DIAC that an officer did not reveal that information, but rather the response was that they were “unaware” of any contact by DIAC officers with the Chinese Embassy or Consulate.  It is notable in this respect that, somewhat unhelpfully, in its response to the Tribunal the Department did not specifically address the Tribunal’s request for a comment on the applicant’s quite detailed claims about a conversation with a particular IDC officer (identified by gender and skin colour) who was said to have told him that an official from the Chinese Embassy or Consulate wanted to talk to him and to wait for the call and his belief that this officer revealed his name to the Chinese Embassy or Consulate, other than to state “See below”.  Given that there was an email on the Department’s file in which an officer recorded that the applicant “advised he won’t call the Consul but will accept a call from the Consul” (as was only revealed to the applicant’s adviser in response to an FOI request) and also that the delegate referred to Departmental records indicating that the Chinese Consulate was in touch with the applicant, it is, at the least, somewhat surprising that the Department did not provide a specific response to this aspect of the Tribunal’s request for comment. 

1. In these circumstances, the Department’s reference to being unaware of any contact with the Embassy or Consulate by DIAC officers, where there was no specific response to the particular claims put to it by the Tribunal, does not equate to a positive assertion by the Department that the Department or the IDC did not reveal the applicant’s name and the fact of his detention at the time of the riot to the Chinese Embassy or Consulate as the Tribunal put to the applicant under s.424AA.

2. As indicated, the Department did not state that “no” IDC or DIAC officer contacted the Chinese Embassy or Consulate, but rather gave a negative response to the question of whether the Chinese Consulate was “generally notified” when Chinese citizens were detained or deported, adding that there was “no evidence” of any contact by DIAC officers.  It was the Tribunal’s interpretation of this and the other responses that formed the basis for its conclusion that the information was to the effect that no IDC or DIAC officer contacted the Chinese Embassy or Consulate about the applicant.  The Department’s negative response to the question about whether the Chinese Consulate was “generally notified” when a Chinese citizen was detained did not go so far as to state that the “only time” the IDC or DIAC may make Chinese authorities aware that a Chinese citizen was in detention was when a detainee did not have a valid travel document. 

3. The remarks by Flick J in SZNKO at [23] are illustrative of the effect of context on the clarity required in the provision of “clear particulars” under s.424AA:

   There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained.  In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters.  In those cases the disclosure of that specific part of a much lengthier document may be sufficient.  But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context it which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case.

4. In the particular circumstances of this case I am satisfied that the Tribunal did not meet the requirements of s.424AA of the Act. “Clear particulars of the information” cannot be said to have been given to the applicant.  The Tribunal used language“ which fail[ed] to identify [the] information with “sufficient specificity” and which fail[ed]  to set out information “unambiguously”” (see MZYFH per Bromberg J at [39], SZMTJ per Flick J at [45], MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] per Tracey J).

5. Had the Tribunal in this case accurately summarised the Department’s response, there may have been no need to disclose the actual responses in the hearing. It did not. Hence it did not provide clear particulars of the actual information from the Department (as distinct from the inference the Tribunal drew from that information) such as to convey accurately the relevance of that information to the review and to afford the applicant a meaningful opportunity to respond to what was purportedly put to him pursuant to s.424AA of the Act.

6. Even if the information subject to the s.424A(1) obligation was confined to the Departmental answers to questions four and five in the Tribunal request for information, the Tribunal did not give the applicant “clear particulars” of this information.  The manner in which it recorded that it put the information provided by the Department to the applicant did not accord with or reflect accurately the response in fact received by the Tribunal from the Department.  The differences were of such significance that it cannot be said that “clear particulars” were provided.  In particular, the Tribunal recorded that the advice was “that no IDC or DIAC officer contacted the Chinese Embassy or Consulate about him while he was detained at the IDC”.  However, neither question four or five asked the Department this question.  The Department responded “no” to question four as to whether the Consulate was “generally notified” of detention or deportation of Chinese citizens. 

7. The Department’s lack of knowledge and its reply that there was “no evidence” of any contact by DIAC officers was similarly not information that on its face stated that no DIAC or IDC officer had given the Embassy or Consulate the applicant’s name.  Rather, the Tribunal drew such an inference from these responses. 

8. In such circumstances the Tribunal failed to provide “clear particulars” of the information under s.424A of the Act.

9. The inadequacy of the Tribunal’s disclosure to the applicant was compounded by the fact that (on its own account) it put to the applicant that the information “may be” the reason or part of the reason for affirming the decision under review (not that it “would” be the reason or part of the reason) (cf MZYFH at [62] – [66]) and see SZLFX at [25] and SZOLJ & Ors v Minister for Immigration & Anor [2011] FMCA 81 at [49]).

10. As Bromberg J stated in MZYFH at [65] – [66]:

    In that context, in order to meet its obligation to ensure that the visa applicant understands the consequence of the information, it is incumbent on the Tribunal to tell the visa applicant that the information which it has particularised would be the reason, or part of the reason, for affirming the decision under review, unless it is persuaded not to do so by any response that the applicant can make to the information. The visa applicant should be invited to comment on or respond to the information, including by seeking additional time, for that purpose. Thus, having clearly particularised the information in question, the Tribunal might invite the visa applicant to “comment on information that the Tribunal considers would, subject to any comments you make, be the reason, or part of the reason, for affirming the decision under review”. That formulation appears to have been utilised by the Tribunal in other cases: see for example Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [6] and MZXKH at [20]. It was not utilised here.

    By telling the applicant that the information “could” form the reason or part of the reason, the Tribunal failed to ensure that the applicant understood the view that the Tribunal had arrived at, and the full gravity of the consequence of that view upon his claim. In the absence of a proper understanding, the appellant was not put in a position to understand how critical it was for him to respond and to do so convincingly.

11. In these circumstances, the “full gravity of the consequence” of the Tribunal’s view (and hence how critical it was to respond convincingly), was not clearly communicated to the applicant. 

12. The Tribunal did not comply with the provisions of s.424AA of the Act. Thus s.424A(2A) was not applicable and it had to comply with s.424A of the Act (SZMCD at [73]). It did not purport to rely on the procedures in s.424A in relation to any of the information in question.

13. Section 424A(1) imposes “strict requirements” (SZEOP v Minister for Immigration and Citizenship [2007] FCA 807) and as Flick J stated in SZMTJ at [43] “it was made clear in SAAP that the Tribunal commits jurisdictional error if it fails to comply with the requirements of s.424A”. The Tribunal failed to comply with s.424A. Sending the applicant’s adviser a copy of the Department’s reply in response to a request to a Tribunal officer from the adviser in a telephone conversation after the Tribunal hearing was not done “orally” in accordance with s.424AA and did not amount to giving the applicant clear particulars of information or its relevance or inviting a comment or response on that information in the manner required under s.424A(1) of the Act. As the Tribunal failed to comply with s.424A of the Act it fell into jurisdictional error. The matter should be remitted for reconsideration on this basis.

14. On reflection, I note that a s.424A and s.424AA issue may also arise in relation to information about Departmental records said to show that the applicant had repeatedly refused the request to return to China. The Tribunal told the applicant (by reference to what the delegate noted in her decision, not the records themselves) that this possibly indicated (with other evidence) that he was “exploiting the riot” and had “falsely created or manufactured” the “story” about the Embassy or Consulate contacting him. It did so before it specifically put other adverse information to him under s.424AA of the Act at the third Tribunal hearing.

15. The applicant did not raise and the first respondent did not address the issue of whether such information was subject to s.424A of the Act or, if so, whether it was put to the applicant in accordance with s.424AA of the Act, except insofar as it was submitted generally that “[t]he only information required to be put to the applicant pursuant to section 424A or section 424AA” was put to him orally during the third hearing and that no error under s.424A, s.425 or any other provision in Division 4 of Part 7 of the Act was apparent from a fair reading of the Tribunal’s decision record.

16. In light of my conclusion about the Tribunal’s failure to comply with s.424A(1) in relation to the information from the Department dated 24 February 2010 and in the absence of evidence of the content of the Departmental records in question or of submissions from the parties on this particular issue I have not considered further or reached any conclusion about the application of s.424A of the Act to any records about the applicant’s refusal of requests to return to China or whether the Tribunal complied with s.424AA in relation to such information.

17. Nor have I determined whether the Tribunal was obliged to comply with s.424A of the Act in relation to the oral information from the Department about the protocols for incoming phone calls to detainees in the IDC and the availability of phones to detainees referred to at [12] and [19] above. These issues (which were not put to the applicant in writing or, on the Tribunal’s account, at the hearing) were not addressed specifically in the first respondent’s submissions. Similarly, it is unnecessary to address other possible issues of jurisdictional error arising in relation to the manner in which the Tribunal dealt with the allegedly corroborative email or made findings in relation to the applicant’s credibility.

18. The matter should be remitted to the Tribunal for reconsideration according to law. 

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  9 June 2011