SZOPF v Minister for Immigration

[2010] FMCA 924

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPF v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 924

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal adopted the role of arbiter of Catholic doctrine – whether an illegitimate a priori approach was taken – whether the Tribunal failed to carry out its statutory duty to review the delegate’s decision – whether the Tribunal failed to inquire – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 414, 418, 420

Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599
WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Abebe v Commonwealth [1999] HCA 14; (1999) 162 ALR 1; (1999) 197 CLR 510
Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1
SZONC & Anor v Minister for Immigration & Anor [2010] FMCA 723
SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZOIN v Minister for Immigration & Anor [2010] FMCA 741
WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103
Matete v Minister for Immigration and Citizenship [2008] FCA 1876
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
SZNWA v Minister for Immigration & Anor [2010] FMCA 21
SZNWA v Minister for Immigration and Citizenship [2010] FCA 470
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41

Applicant: SZOPF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1913 of 2010

Judgment of: Nicholls FM

Hearing date: 3 November 2010

Date of Last Submission: 3 November 2010

Delivered at: Sydney

Delivered on: 1 December 2010

REPRESENTATION

Counsel for the Applicant: Mr J F Gormly

Appearing for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 31 August 2010, and amended on 21 October 2010, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1913 of 2010

SZOPF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 31 August 2010, and amended on 21 October 2010, under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 August 2010 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the People’s Republic of China (“China”). He arrived in Australia on 27 March 2010. He was interviewed at the airport by an officer of the Minister’s department (Record of interview – Court Book (“CB”) – CB 1 to CB 5). Amongst other things he said he wanted to apply for “refugee status”. He gave as the reason that he was a Catholic and was being “bullied” by Buddhists (CB 5.6).

The Delegate

1. The application was made on 27 April 2010 (CB 7 to CB 48). The applicant was assisted by a migration agent (CB 50).

2. His claims were initially set out in a statement attached to the application. His claims were that he feared persecution in China because of his involvement with an underground church. This was said to be the Catholic Church led by the Pope.

3. He claimed that in December 2008 he was arrested and detained for 15 days by the authorities and warned by police that he would be severely punished if he continued his involvement.

4. In December 2009 he was responsible for organising the renovation of an abandoned house in his village for use as an underground church. After about a month, while he was painting a wall, police burst in. He was pursued but managed to escape. He claimed he remained hidden until he was able to organise his escape through a snakehead to join his brother in Australia.

5. The delegate refused the application on 27 May 2010 (CB 84 to CB 99). The delegate was not satisfied that the applicant was a practising Catholic in China. Consequently the delegate did not accept he had been detained and harmed by the authorities or that he had left China for that reason. The delegate found that the applicant’s departure from China and wish to remain in Australia were for economic reasons.

The Tribunal

1. The applicant applied for review on 31 May 2010 (CB 103 to CB 106). He continued to be assisted by a migration agent who appears to have been employed by a firm of solicitors (CB 104).

2. In anticipation of his attending a hearing before the Tribunal, his advisers made written submissions on the applicant’s behalf (CB 124 to CB 129 with attachments at CB 130 to CB 132).

3. The applicant attended a hearing before the Tribunal on 7 July 2010 (CB 133). He also submitted further documents (CB 136 to CB 137).

4. By letter dated 12 July 2010 the Tribunal invited the applicant to comment on certain information relating to what the applicant had told the departmental officer at the airport on arrival (CB 142 to CB 143).

5. The Tribunal found the applicant was not a credible or reliable witness because of discrepancies, conflicts and omissions in his evidence ([106] at CB 165).

6. It therefore looked also to the other evidence to see if it would “indicate that the applicant was a Catholic in China.” This involved consideration of two letters the applicant provided in support of his claims from a bishop in China and from a priest in Australia. It did not accept these documents as evidence he had practised Catholicism in China ([107] at CB 165 to [109] at CB 166).

7. The Tribunal considered the applicant’s knowledge of the Catholic religion. It found he had “made several errors about the belief system and the observances in the Catholic religion”, and did not “have a knowledge of the Catholic religion which would be expected of someone who claimed to have been regularly involved for three years.” ([110] to [111] at CB 166).

8. It concluded he was not a Catholic in China ([112] at CB 166).

9. Given these findings it rejected the factual basis of his claims to have suffered harm in China. It also rejected his claim to have suffered at the hands of Buddhists ([119] at CB 167 to [124] at CB 168).

10. The Tribunal disregarded his conduct in Australia pursuant to s.91R(3) ([125] to [129] at CB 168).

Before the Court

1. Before the Court Mr J F Gormly of counsel appeared for the applicant. Mr G Johnson for the first respondent.

2. The applicant pleads three grounds by way of amended application made on 21 October 2010.

3. In addition to the Court Book I took into evidence the affidavit of Sue Archer, a Court reporter, which annexed a transcript of the Tribunal hearing (“T”) (without objection).

4. Mr Gormly sought leave to read the affidavit of Michael McCrudden, solicitor, which amongst other things annexed copies of a number of photographs. The Minister objected to paragraph 2 of the affidavit and the copies of the photographs to which it referred.

5. Mr Gormly was unpersuasive in establishing that these photographs were relevant to a fact in issue before the Court. The photographs, purportedly of the applicant and others engaged in religious worship in China, were not before the Tribunal. In these circumstances it was difficult to see their relevance to the question of jurisdictional error. Nonetheless I provisionally admitted paragraph 2 of the affidavit and the copies of the photos to allow Mr Gormly to make his submissions (the originals were also tendered).

6. Mr Gormly also sought to hand up two documents “downloaded” from the internet headed: “Louis de Montfort” and “The Holy Rosary”. Mr Johnson objected. I agreed that it appeared the documents could only be relevant to an invitation for this Court to engage in impermissible merits review. Nonetheless I marked them for identification (“MFI 1” and “MFI 2”) to allow Mr Gormly to develop his submission and in the expectation that he could establish relevance in support of one of the grounds of judicial review.

Consideration – Ground One

1. Ground one pleads that the Tribunal asked itself the wrong question concerning the applicant’s claim to be a Catholic. The central issue in this ground is the complaint that the Tribunal adopted the role of arbiter of Catholic doctrine.

2. Mr Gormly relied on a line of authority to submit that the Tribunal engaged in “an illegitimate a priori approach” in relation to this issue and thereby fell into jurisdictional error. He relied on Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 (“Wang”) per Gray J at [16], WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 (“WALT”) at [28] and [30] and Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 (“SZLSP”) per Kenny J at [30]-[42].

3. The submission contained two elements. The first was that this can be seen with reference to four items in particular which reveal that the Tribunal asked certain questions of the applicant as against an arbitrary, pre-determined standard of what a Catholic in China should believe. Second, and in any event, there was no basis for the standard as applied by the Tribunal.

4. The submission was that the Tribunal made findings about four matters ([110] at CB 166) which revealed that it had imposed such a standard. Further, that the independent information on which the Tribunal relied to establish this standard did not provide a sound basis (with reference to SZLSP at [39]) for the standard set, and consequently the Tribunal’s decision fell into error.

5. The matters that were said to comprise this standard were the Tribunal’s view that:

   a)Passover is a Jewish, not a Catholic, observance.

   b)Mass is not celebrated on Good Friday and therefore could not have been celebrated on that day as stated by the applicant.

   c)Mass is always celebrated on Christmas Day.

   d)It is incorrect to state that the origin of the Rosary was in 1907 when the Holy Mother visited Fatima.

6. The matter of Passover was discussed at the Tribunal hearing. The Tribunal confirmed a number of relevant matters put by the applicant in his written statement as they related to his practice in China and his understanding of Catholicism. (See T17.7 to T20.2.)

7. The references to Passover and Mass were initially made by the applicant in his written statement in support of his application (see CB 34 at [11]). The Tribunal’s questioning at T17 to T20 was in relation to what the applicant had put in his statement.

8. Mr Gormly referred the Court to T20 where the Tribunal raised its concerns about what the applicant had said; to T24 where the applicant responded in particular about Passover; and to T19 concerning the celebration of Mass.

9. In relation to the Rosary, Mr Gormly referred the Court to the discussion at the hearing (T26 and following) and to MFI 1 and MFI 2. At best I understand Mr Gormly’s submission to be that the applicant gave the Tribunal information about the Rosary. The information relied on by the Tribunal, in this regard, was not an appropriate standard against which the applicant’s evidence was to be assessed.

10. In short, this submission was also a good example of the application of an arbitrary standard and the lack of a sound basis for concluding that the elements in question were elements that a Catholic in China might reasonably be expected to know.

11. There were a number of difficulties with Mr Gormly’s submissions.

12. At times he sought to cross the line into merits review with, for example, “evidence” from the Bar table that Passover is “contained” in every mass celebrated in the Catholic Church. He opined that the Court should take judicial note of this.

13. In one instance he sought to engage the Court’s “interest in these matters.” Whatever the Court’s interest in Passover, Mass or the doctrine of Catholicism, the only relevant interest of the Court for the purposes of this judgement is whether the Tribunal’s decision is infected with jurisdictional error.

14. On another occasion he took issue with the Tribunal asking what he said was a “leading question” (at T19.8: “So the Friday at Easter this year the Mass was on that Friday was it?”). This appears to ignore the context wherein the applicant had just given evidence about the celebration of Easter, and that in China Mass was celebrated on Sunday, but that in Australia (in his experience, because of Father McGee’s visits to the Villawood Immigration Detention Centre) it was celebrated on Friday. The Tribunal’s question was plainly a logical and reasonable attempt to clarify the applicant’s evidence.

15. But in any event the Tribunal is meant to conduct its proceedings in an inquisitorial, not adversarial manner (Abebe v Commonwealth [1999] HCA 14; (1999) 162 ALR 1; (1999) 197 CLR 510, 578 (Gummow and Hayne JJ), Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57], [81] (Gummow and Heydon JJ). See also Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1, 97). It is “not bound by technicalities, legal forms or rules of evidence.” (s.420(2)(a)).

16. The applicant’s grounds and submissions require a reminder of a number of points.

17. First, I respectfully agree with Raphael FM (in SZONC & Anor v Minister for Immigration & Anor [2010] FMCA 723 at [11]) that, while it is not appropriate for the Tribunal to impose an arbitrary standard in assessing an applicant’s religious adherence, “… the Court should recognise those cases in which this course of action is undertaken by the Tribunals as rare and should not rush to so minutely examine every case in which religious knowledge is questioned in order to attempt to find error.”

18. Some of the reasons for this are obvious. There is nothing in the relevant authorities to say that if an applicant claims to be an adherent of a particular faith, and to have practiced that faith for a span of time, that the Tribunal cannot explore the applicant’s level of knowledge and the experience of his practice.

19. It is difficult to conceive how the Tribunal could discharge its obligation to conduct the review of a matter where an applicant claims to fear persecutory harm on the basis of being a Catholic in China without asking questions of his understanding of the Catholic faith and his experience of its practice in China, such as to then inform whether it can reach the requisite level of satisfaction as to whether he has a well founded fear of persecution for that reason.

20. Plainly the Tribunal cannot be the arbiter in respect of any religious doctrine (Wang per Gray J at [16], accepted by the Full Court in WALT at [28]). But it does not follow that simply questioning an applicant about his beliefs (as in the current case) about “matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.” (WALT at [29].)

21. The Full Court in SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 (“SBCC”) said at [45]:

    “Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground.”

22. As Kenny J explained in SZLSP (at [37]):

    “There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion.”

23. In the current case the applicant essentially poses two attacks on the Tribunal’s approach. The first, that the Tribunal imposed an arbitrary standard as to what the applicant should believe if it is to be accepted that he was a Catholic in China. This approach was said to be exemplified by the Tribunal’s finding that Passover was a Jewish, not Christian occasion, when mass should be celebrated, and the origin of the Rosary. The second is based on what Kenny J said, in part, at [39] of SZLSP. That is, there was no basis for the Tribunal to reach the conclusions that it did in relation to each of these elements.

24. The applicant’s ground is not made out.

25. Mr Gormly asserts the Tribunal engaged in inappropriate a priori questioning of the applicant in relation to these matters. To the extent that this asserts some general implication about the Tribunal embarking on a course of impermissible questioning of the applicant about these matters, this does not establish a basis for error. (See SBCC and SZLSP as referred to above.)

26. Second and critically, what is missing in the applicant’s attack is the understanding that the Tribunal did not pluck these elements out of some preconceived set of notions about what a Catholic should believe.

27. The applicant himself made it clear in his initial statement setting out his claims (CB 33 to CB 37) that he was a “Roman Catholic”, a member of that Church in China, and whose head is “Pope Benedict” (CB 33.8). He participated in “important or special occasions like… Passover” (CB 34.3), and celebrated “Mass about every two weeks” (CB 34.3). He gave details about this practice and experience.

28. The impact of this is that when it came to the hearing there was nothing “objectionable” in the Tribunal then proceeding to question the applicant about these matters. The relevant authorities emphasise this (see SZLSP at [38] per Kenny J).

29. As her Honour also said (also at [38]):

    “… When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.”

30. The applicant’s relevant answers are plainly set out in the transcript of the Tribunal’s hearing. The elements complained of now by the applicant need to be understood in the context of the approach taken by the Tribunal.

31. The applicant had set out his experience in China in some detail in his initial written statement. The transcript reveals that the Tribunal went to some lengths at the hearing to “work through” what the applicant had said, not only in relation to religious practice, but also his involvement generally with the Church and what he said had happened to him

32. Before the delegate, the applicant’s responses to questions about his religious beliefs and traditions: “… overall were hesitant, fairly vague and lacking in detail.” (CB 98.1.)

33. The delegate rejected the applicant’s claims to have been a practicing Catholic in China. He found that it appeared that, with reference to the applicant’s “statement”, his reasons for leaving China and for remaining in Australia were economic (CB 98.7).

34. At the hearing the Tribunal quite properly sought to explore with the applicant those beliefs and practices which he said he held and which the delegate did not accept.

1. The central issue in the conduct of this review was whether the applicant was a practicing Catholic in China. The Tribunal addressed the applicant’s own statement in this regard. The Tribunal specifically addressed what the applicant said in his statement. (The Statutory Declaration – T17.7.) This discussion included the reference to Passover, Mass, and when it is celebrated, including the applicant’s references to Mass being celebrated on a Friday in the Villawood Immigration Detention Centre. (To T21.5 and T24.7 to T25.3.)

2. The matter of the Rosary was initiated by the Tribunal’s observation and question about an item worn around the applicant’s neck (T26.5). The applicant then proceeded to say he recited the Rosary and gave evidence as to the importance of this to Catholic practice. In this discussion the applicant stated that: “… the origin of the Rosary was dated back to 1907.” (T26.9.)

3. Importantly, in assessing the applicant’s evidence the Tribunal did not rely on any of its own possible experiences or understanding of Catholicism. Even this, as Mr Johnson correctly submitted, on its own would not revel error. (See SZLSP at [42].) But the Tribunal plainly had regard to independent information about these matters which it had researched. The Tribunal set out the relevant parts of this information and its sources in its decision record (CB 156).

4. This material was the probative basis for Tribunal’s questions and its findings.

5. There is a distinction to be drawn between a Tribunal saying this is what a person must believe to be accepted or perceived to be a Catholic, and a Tribunal which takes the applicant’s own evidence about what he believes as a Catholic and compares his explanations to independent information.

6. Plainly in the current case the Tribunal pursued the latter course.

7. The choice and weight to be accorded to such independent information is for the Tribunal to decide (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]). The applicant may now seek to put “interesting” or even engaging information “downloaded” from other internet sites before the Court, but none of this assists him. The Court cannot engage in merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”).

8. The Tribunal did not fall into error as pleaded by the applicant now. Its approach was consistent with the direction as to how the question of religious faith and practice is to be determined, as set out in WALT and SZLSP.

9. In SZLSP Kenny J said at [38]:

   “… As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.”

10. The applicant also complains in ground one that the Tribunal asked itself the wrong question because it assessed that the applicant had made errors about the items listed above, and that the applicant was therefore not a Catholic in China.

11. First, the Tribunal did not find that that the applicant was not a Catholic in China simply on “errors” or inconsistencies in the applicant’s evidence about these items.

12. The inconsistencies in the applicant’s evidence derived from a wider scope than just the items above. These included inconsistencies in his evidence about why he came to Australia, why he left China at the time he did, the initial claim that he feared harm from Buddhists, which appeared to have diminished if not ceased during the conduct of the review as an element in his account of why he feared persecutory harm.

13. Second, the Tribunal’s findings in this regard were all open to it on what was before it, and for which it gave reasons. No error is revealed in these circumstances.

14. Finally, the applicant’s complaint that the Tribunal did not weigh or take into account the applicant’s evidence, other than as it related to the four items above, must also be rejected.

15. The applicant specifically makes reference to those matters set out in the Tribunal’s decision record at [68] at CB 159 to [79] at CB 161. Any plain reading of all the relevant material before the Court, in particular the applicant’s written statement, the transcript and the Tribunal’s decision record, plainly reveals that the Tribunal did take into account all aspects of the applicant’s evidence. The problem for the applicant is that it did not find him credible such that it could reach the requisite level of satisfaction such that the protection visa must be granted. (With reference to s.65 and s.36(2) of the Act.)

16. The applicant’s real complaint in this regard is revealed, on any plain reading, not to rise above a request for impermissible merits review.

17. In all ground one is not made out.

Grounds Two and Three

1. Grounds two and three may be considered together. Ground two pleads that the Tribunal failed to carry out its statutory duty to review the delegate’s decision. This is said with reference to four photographs first mentioned in the visa application form. Ground three pleads a failure to inquire about these photographs.

2. The background to understanding this complaint is as follows. The applicant was assisted by migration agents/lawyers in making his application for a protection visa. In the relevant part of one of the forms comprising the application the applicant indicated that he had provided with his application: “PHOTOGRAPHS OF ME WITH FELLOW PRACTITIONERS” (Q.12 at CB 13).

3. At the hearing with the Tribunal the following exchange relevantly took place (T23.1 to T 23.7):

   “APPLICANT: My solicitor provided photos I took in China before. Do you have it?

   TRIBUNAL MEMBER: No I don’t have any photos at all.

   APPLICANT: How come my solicitor did not submit my evidence to your member?

   TRIBUNAL MEMBER: I have no idea, you would have to ask your representative that. But I don’t have any photos, there are certainly none on the Department file.

   APPLICANT: Photos, the four photos took by my church friends while we were having gathering at home.

   TRIBUNAL MEMBER: No I don’t have any photos.

   APPLICANT: During the interview with the delegate in Villawood detention centre my solicitor brought the evidence and I saw those photos at that time. How come we don’t have it here?

   TRIBUNAL MEMBER: I can’t answer that but they are not on the file. I am just seeing if there is a reference to the photos in any of the delegate’s notes.

   APPLICANT: You cannot come to the conclusion that I’m not a genuine Catholic just based on the lack of Catholic knowledge and my unfamiliarity of religious rituals because I am a Catholic but too many things contained in our religion so it cannot be understood in a short period of time.

   TRIBUNAL MEMBER: In terms of those photos I do not have them at all so they are not evidence that I can consider in my review. Do you understand?

   APPLICANT: Well then it’s worth a phone call to the solicitor.

   TRIBUNAL MEMBER: Well that’s up to you but all I am saying is I have no photos on the files and if I don’t have them I can’t use them as evidence. I will note your claim that you gave these photos to the delegate but if I can’t see them I can’t assess them and their value.”

4. In its account of the hearing the Tribunal said (at [87] at CB 162):

   “The applicant asked whether the Tribunal had the four photos his representative had given at the department interview, of the applicant and friends at gatherings at home. The Tribunal checked both the Department and Tribunal files and found no photos and no reference to any photos. The Tribunal explained that it could not therefore consider any photos as evidence.”

   No further reference was made to the photographs in the decision record.

5. The applicant’s complaint in relation to the photographs has two limbs. The first is that the Tribunal failed to carry out its statutory duty to review because it failed to consider the four photographs (ground two). The second is that the Tribunal’s failure to make inquiries about the existence and location of the photographs was so unreasonable that in itself this amounted to jurisdictional error (ground three).

6. Two preliminary points need to be addressed. The first is the Tribunal’s statement at [87] (see [79] above) that there was no reference to any photographs in the department’s file.

7. At first blush what the Tribunal said appears to be at odds with what is plainly set out in the application for a protection visa (at CB 13). There plainly was a reference to some photographs.

8. Ultimately, however, I agree with Mr Johnson that when the Tribunal’s statement is read properly and in context with that relevant part of the hearing as set out above (see [78] above) the Tribunal, on at least a fair reading, was saying that there was “no reference to any photos” (CB 162.3) that the applicant’s “representative had given at the department interview” (CB 162.2) after: “… just seeing if there is a reference to the photos in any of the delegate’s notes.” (T23.5.)

9. The second point to be made concerns Mr McCrudden’s evidence. Other than for that part of [2] referring to the photographs, this evidence was not challenged by the Minister. Mr McCrudden was not required for cross-examination.

10. But I cannot see that this evidence, even taken at its highest, establishes that the photographs were before the Tribunal. Mr McCrudden’s evidence is clear. He was responsible for lodging the application for a protection visa to the Minister’s department. This was sent to the Minister’s department under cover of his letter of 27 April 2010. (Annexure “A” to his affidavit.)

11. Question 12 of one of the forms comprising the application package makes reference to the photographs (see as set out above at [77]). Mr McCrudden’s evidence is that, based on his standard practice, when a document is referred to in the form he annexes it to the application. Having inspected his file, there is no reason to believe that he deviated from this practice and therefore he believes the photographs were annexed to the protection visa application form.

12. His evidence was also that there is no record of any communication from the Minister’s department indicating that they were not so annexed.

13. It is interesting to note that in his covering letter of 27 April 2010 (Attachment “A” to his affidavit, and at CB 6) Mr McCrudden specifically makes reference to a number of documents enclosed with the application for the protection visa. While there is specific reference to the applicant’s statutory declaration, which was also listed in form 866B as a document attached to the protection visa application (CB 13), there is no mention of any photographs.

14. At its highest Mr McCrudden’s evidence is that it is his belief that the photographs were given to the Minister’s department. This is not evidence that they were in fact given. Other evidence before the Court (his own letter for example) would suggest to the contrary. In addition there is no reference to any photographs being before the delegate, nor in the delegate’s decision record. (See in particular the delegate’s notes of the interview with the applicant and “MATERIAL BEFORE THE DECISION-MAKER” at CB 88.)

15. At best, on the evidence the position is that the photographs may have been given to the Minister’s department. They may not. No clear finding can be made with confidence either way. But what is clear on the evidence is that ultimately the photographs were not before the Tribunal.

16. The applicant raised the issue of the photographs at the hearing with the Tribunal. (See [78] above and T23.) The Tribunal searched its file in line with the applicant’s advice that the photographs had been given to the delegate at the interview by his solicitor. No record or reference to the photographs was found in this context. The Tribunal clearly told the applicant that this was the situation.

17. In the circumstances, in the absence of any other evidence, or any evidence to the contrary, the appropriate inference to be drawn is that the photographs were not put before the Tribunal.

18. There was some dispute between the parties as to whether the photographs were an integer of the applicant’s claims or evidence of an aspect of his claims. This is dealt with below. But whatever the nature of the photographs, there is no jurisdictional error in failing to consider evidence, or even an aspect of a claim, that was not before, or put before, the Tribunal.

19. That on its own provides a complete answer to the complaint in ground two.

20. Further, even if the Court were to proceed on the basis that the photographs had accompanied the protection visa application, there is no evidence that the photographs were put before the Tribunal by the Secretary to the Minister’s department (“the Secretary”). In fact there is clear evidence arising from the transcript of the Tribunal’s hearing that they were not before the Tribunal.

21. While it is the case that s.418(3) provides that the Secretary is required to provide to the Tribunal any documents which he considers relevant to the review, any failure by the Secretary in this regard does not reveal jurisdictional error on the part of the Tribunal.

22. I recently considered this issue in SZOIN v Minister for Immigration & Anor [2010] FMCA 741 (“SZOIN”) (see generally at [36] to [85]). In the current case, as in SZOIN, I am directed by the Federal Court on appeal from this Court, as to matters of law.

23. In WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103 (“WAGP”) the appellant submitted to the Full Court that an important document in relation to his claim for a protection visa had not been provided by the Secretary to the Tribunal. This was a document which was said to be in the possession and control of the Secretary.

24. The Full Court found that despite such failure there was no jurisdictional error in the Tribunal’s decision because the obligation in s.418(3) is imposed on the Secretary, not on the Tribunal. The Secretary’s failure to comply with the obligation on him was held not to vitiate the Tribunal’s decision (WAGP at [51] to [52]). (See also Matete v Minister for Immigration and Citizenship [2008] FCA 1876 per Buchanan J at [18] to [19].)

25. The applicant sought to put the four photographs (and copies) into evidence before the Court. The photographs show a number of people in a room. There is nothing to distinguish the room as a place of Catholic worship. It could be a makeshift adult class room. Two people are looking at a book. There is nothing to distinguish the book as being of particular religious nature, let alone Catholic.

26. It is difficult to understand Mr Gormly’s insistence that the photographs be put into evidence. Even if the photographs depicted the Pope conducting a mass with the applicant in the congregation (which they do not) it would not assist him before the Court. It is trite to say that the Court cannot engage in merits review and make a finding that the applicant was a Catholic in China.

27. I provisionally admitted the photographs pending submissions from Mr Gormly to establish relevance to a fact in issue. Whatever the photographs depict is not relevant to a fact in issue before the Court.

28. If all that Mr Gormly was seeking to achieve was to establish that the photographs referred to in the application for a visa in Mr McCrudden’s evidence, and as referred to by the applicant at the Tribunal hearing, actually exist, then there is sufficient other evidence before the Court (Mr McCrudden’s unchallenged evidence that he had such photographs in his file) to go to their existence.

29. The second sentence of paragraph 2 of Mr McCrudden’s affidavit, and the copies of the photographs annexed are therefore not admitted into evidence.

30. The situation therefore is that there are certain photographs in existence. They were referred to in the protection visa application form. They were not referred to in the solicitor’s covering letter or the delegate’s notes or decision record. The existence of the photographs was raised by the applicant at the hearing with the Tribunal.

31. The answer to the applicant’s complaint in ground two is, as set out above, that the photographs, for whatever reason, were not before the Tribunal. Whatever their nature there is no jurisdictional error in the Tribunal not considering them.

32. The Tribunal certainly had a statutory duty to review the delegate’s decision under s.414 of the Act as Mr Gormly submits. Further, it is also the case that the Tribunal was not prepared to accept the applicant as a credible or reliable witness on his evidence alone in deciding whether his claims were genuine ([106] at CB 165).

33. It is also the case that it was this factor, and also what the Tribunal described as the lack of clear supporting evidence “that led it to reject his factual claims to have been harmed in China” ([119] at CB 167).

34. The photographs may or may not have assisted the applicant before the Tribunal. To say that they were “critical” may be an overstatement. But even if, for arguments sake, it is said that they would have been critical in the circumstances set out above, this does not reveal jurisdictional error on the part of the Tribunal as asserted in ground two.

35. As an alternative argument Mr Gormly submitted that the photographs were not just a piece of evidence, but actually raised an integer of the applicant’s claims. Specifically, that at a particular time and place in China and with particular persons the applicant practiced the Catholic religion. The applicant relies on Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J to argue that such a failure to consider an integer of the applicant’s claims is jurisdictional error.

36. There are two complete answers to this.

37. First, I cannot see that the photographs in themselves were an integer of the applicant’s claims. As the Minister submits, even taken at their highest they would not have been evidence that the applicant had practiced Catholicism in China, even at a particular time with particular people. No particular time or place is given by or with the photographs themselves.

38. That he was a Catholic in China, that he practiced in an underground Roman Catholic Church, that he was an organiser of the Church, that he “met” regularly with a congregation of about 20 other people to pray and read the Bible, and that he suffered harm at the hands of the local authorities, were all claims made by the applicant initially in his statutory declaration and pressed at the hearing before the Tribunal.

39. Mr Gormly’s submission that the photographs themselves have some additional specificity to have practiced Catholicism with other people at a particular time and place do not add or create any additional element or integer to these claims. That they give particularity to such claims is in my view just another way of saying that they provide evidence or even some substance to those claims, not that they expand them.

40. The Tribunal dealt with the applicant’s claims and all aspects of his claims. Htun and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 do not assist the applicant.

41. But second, whether they were evidence or claims in themselves does not alter the fact that the photographs were not before the Tribunal in circumstances where no jurisdictional error is otherwise revealed.

42. In all ground two is not made out.

43. Ground three pleads that the Tribunal fell into error because it failed to make inquiries of the existence and whereabouts of the four photographs, and that this was so unreasonable as to fall into jurisdictional error.

44. Mr Gormly relied on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”) at [25] for the proposition that the duty imposed on the Tribunal by the Act is to review the delegate’s decision and that a failure to make an inquiry in certain circumstances may constitute a failure to review. Such failure could give rise to jurisdictional error by a constructive failure to exercise jurisdiction.

1. The submission was that the applicant’s raising of the matter of the photographs at the hearing was just such a circumstance as to engage this duty.

2. Mr Gormly’s submission was that there had been a reference to the photographs in the protection visa application. When the applicant raised the matter at the hearing the Tribunal should have made inquiries of the delegate and, failing a successful outcome of that, of the applicant’s solicitor.

3. SZIAI does not necessarily stand for any proposition that the Tribunal has a general duty to inquire. The duty is to review. The High Court set out the elements at the very least that are necessary to engage the obligation to inquire (at [25]) (see also [26]-[27] and [52]):

   “It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.”

4. At the hearing I specifically asked Mr Gormly to go through the elements set out by the High Court at [25] of SZIAI. The obvious inquiry was said to be of the delegate. The critical fact was said to be what was “in the photos.” Their existence was said to be “easily ascertained” by one telephone call to the applicant’s solicitor.

5. The applicant’s ground is not made out.

6. What the transcript of the Tribunal hearing reveals is that the Tribunal did not have the photographs. It left the applicant in no doubt that that was the case. The applicant said the photographs had been provided by his solicitor to the delegate at the interview. The Tribunal did inquire of the delegate’s notes available to it and found no such reference.

7. The applicant then told the Tribunal: “… It’s worth a phone call to the solicitor.” The Tribunal’s response was plain: “… that’s up to you.” In the circumstances it is difficult to understand, and it was never explained before the Court, why the applicant apparently did not pursue this with his own solicitor following the hearing.

8. In any event I cannot see that anything said by the High Court in SZIAI compels the Tribunal in the current circumstances to have made further inquiries as to the whereabouts of photographs which were generally referred to in the visa applicant form, but were not put before the Tribunal.

9. The obligation to inquire is said to possibly arise in the circumstances set out by the High Court. This requires a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, and which could supply a sufficient link to the outcome to constitute a failure to review.

10. This refers to a narrow set of circumstances.

11. The relevant critical fact in this case was whether the applicant was a practising Roman Catholic in China. At the very highest, the photographs would only have been further evidence of whether this was the case. Mr Gormly was unable to show how the photographs constituted a critical fact in themselves. Further, Mr Gormly left unexplained how what was in the photographs could supply a sufficient link to the outcome of the review to constitute a failure to review.

12. A similar, but far more substantial argument was put for an applicant in SZNWA v Minister for Immigration & Anor [2010] FMCA 21. This case involved an applicant who told the Tribunal at the hearing that her husband had sent a copy of a particular document to her migration agent (a “penalty notice” in relation to the applicant said to have been issued by the authorities in the country of claimed persecution). This document was not provided to the Tribunal by the applicant. At the hearing the Tribunal made it clear that it did not have a copy of this document.

13. On appeal, Foster J (SZNWA v Minister for Immigration and Citizenship [2010] FCA 470) found that in these circumstances, and with reference to the principles laid down in SZIAI, there was no duty on the Tribunal to inquire of her migration agent, or even its own Registry, as to the whereabouts of the penalty notice (at [36]-[40]).

14. The facts in the current case are similar, but not identical. The only material difference however is that in the current case there was a reference to the photographs in the visa application form. However, as set out above, it cannot be said with any certainty that the photographs were given to the Minister’s department. They were clearly not before the Tribunal.

15. The proposed relevant inquiry in these circumstances was said to be of the delegate or the applicant’s solicitor. In circumstances where it appeared to the Tribunal that no photographs had been submitted to the Minister’s department (the delegate’s notes made no reference), where it was made plain to the applicant that it did not have the photographs, and where on the best view of it (as subsequently confirmed by Mr McCrudden’s evidence before the Court) the solicitor had the photographs then, with respect, to apply what was said by Foster J in SZNWA (at [41]):

    “It was not unreasonable for the Tribunal to proceed upon the basis that it was a matter for the appellant [the applicant] as to whether or not the penalty notice [the photographs] would be provided to the Tribunal.”

16. The difference in the factual scenarios (that is that here the photographs were mentioned in the applicant’s form) is not of such a nature, or of such significance, as to materially alter the Tribunal’s obligation.

17. Further, the circumstances in the current case are that the photographs, at their highest, would do no more than possibly support the applicant’s case. There is no duty on the Tribunal to inquire as to the whereabouts of such documents/photographs in these circumstances (see SZNWA at [36]). The photographs in these circumstances cannot be said to be a critical fact in issue (SZIAI at [25]).

18. As the Minister also submits, even if it could be said that it may have been reasonable for the Tribunal to have made the inquiry as to the whereabouts of the photographs this does not elevate a failure to make any such inquiry to jurisdictional error. (See SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 per Bennett J at [30].)

19. Ultimately in the circumstances it is not for the Tribunal to make out the applicant’s case for him. (See Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 per Keane CJ at [35].) He was on notice that the Tribunal did not have the photographs. The applicant has not explained why, once he became aware of this situation, he failed to take any steps to provide the photographs to the Tribunal when he knew the Tribunal did not have them. His own solicitor had the photographs and the applicant did nothing to secure their presentation to the Tribunal (SZNWA at [41]).

20. Ground three is not made out.

Conclusion

1. With the benefit of legal counsel the applicant has put three grounds before the Court. None of the grounds reveal jurisdictional error in the Tribunal’s decision. It is appropriate therefore that the application to the Court, as amended, be dismissed.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  1 December 2010