SZQIO v Minister for Immigration
[2012] FMCA 443
•30 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQIO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 443 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether failure to comply with s.424A(1) of the Migration Act. |
| Migration Act 1958 (Cth), ss.424AA, 424A, 425 |
| Khan v Minister for Immigration and Citizenship and Another (2011) 192 FCR 173; [2011] FCAFC 21 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 |
| Applicant: | SZQIO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1214 of 2011 |
| Judgment of: | Barnes FM |
| Hearing dates: | 8 December 2011, 6 February 2012, 16 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 16 May 2011 in Tribunal case number 1010411.
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 19 November 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1214 of 2011
| SZQIO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application to review a decision of the Refugee Review Tribunal dated 16 May 2011 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in March 2010 and applied for a protection visa in June 2010. His application was refused and he sought review by the Tribunal. He attended a Tribunal hearing. An English language transcript of the Tribunal hearing annexed to an affidavit of Sue Archer sworn on 14 June 2011 is relied on by the applicant in these proceedings.
In essence, in support of his protection visa application the applicant claimed to fear persecution as a Falun Gong practitioner. He claimed that after his wife was made redundant, he had helped her open a photocopying shop and that he had helped in the shop after work and on the weekends. He also claimed that his wife had copied Falun Gong related material at the shop for a Falun Gong practitioner called Mr Zheng who introduced him to Falun Gong and that he became a Falun Gong practitioner. The applicant claimed that in August 2009 he and his wife were detained by the police and mistreated and that he was hospitalised for 15 days as a result. He claimed that the police cancelled their business licence and arranged to have him sacked from his job. After the applicant came to Australia he took part in Falun Gong activities. He claimed that he had discovered that his wife had since been detained again for seven days.
Tribunal Decision
In its findings and reasons the Tribunal found that the applicant’s claims for protection were based on the initial claim that he and his wife had opened a photocopying or printing shop. The Tribunal did not accept that the applicant and his wife had opened and run a printing shop or the claims that followed.
In considering the applicant’s claim about the shop the Tribunal had regard to the applicant’s evidence that “his major at college was in chemistry and that his work experience was in building materials”, that his wife was an accountant and that they had never otherwise owned shops or their own businesses. The Tribunal also considered the applicant’s evidence about why his wife had opened a printing shop with this background. It had regard to the fact that it had taken “repeated questioning” (at the Tribunal hearing) “for the applicant to finally answer [questions] about why, in view of their education and employment experience” and the fact that they had never run a business before, he and his wife decided to open a printing shop. The Tribunal found that the applicant’s answers indicated that he had not previously turned his mind to this question. The Tribunal did not find it plausible that a couple would start a new business without turning their minds to this question. It also found that the applicant’s response that his wife could type was “an unconvincing reason for why they decided to open up a printing business”.
The Tribunal also found that the applicant’s responses to various questions about the business, including its location, machines used and the customer base, indicated that he had not previously turned his mind to these questions. It was of the view that he was making up his evidence along the way. It had regard, in particular, to the applicant’s inability to provide any detailed information about the source of machines in the shop or the buyers of the machines after they closed the shop. The Tribunal found that in view of the applicant’s involvement in the business, the importance of printing machines in a printing business and the fact they would be one of the most significant fixed costs of the business, the applicant would be expected to be more readily able to tell the Tribunal about where they sourced the machines and to whom they sold them.
The Tribunal also had regard to the fact that while, after repeated questioning, the applicant had told it about the size and frequency of the orders of Mr Zheng, who was said to be one of their more important customers, the applicant did not know how much they charged Mr Zheng. The Tribunal found that given the roles it was claimed the applicant and Mr Zheng played in the business, it was difficult to accept that the applicant did not know how much Mr Zheng contributed to the business financially. The Tribunal also found it “difficult to accept that other than Mr Zheng, their business relied on random people photocopying their household registrars or personal identity cards”. Even if they did not have a fixed customer base the Tribunal observed that it would have expected the applicant to be able to tell it more about their other customers.
The Tribunal considered the applicant’s claims that Mr Zheng had effectively introduced him to Falun Gong, that Mr Zheng was his primary source of information about Falun Gong when he started practising, that Mr Zheng provided him with material to read and that if he had any questions he went to Mr Zheng. However it found that while the applicant had said that he asked Mr Zheng a lot of questions, when asked about the type of questions he had asked him about Zhuan Falun, the applicant had provided numerous responses that did not answer the question, before finally replying that he could not remember. The Tribunal found that it would “expect the applicant to be able to recall the type of questions he [had] asked Mr Zheng about the Zhuan Falun, particularly since Mr Zheng was the person he said he went to with any questions”. The Tribunal accepted that the applicant did have “a level of knowledge about Falun Gong which reflect[ed] the fact that he ha[d] been practising in Australia”, but was of the view that it would have expected him “to be able to expand more on the things he asked Mr Zheng about the most important text for Falun Gong practitioners and what Mr Zheng told him”.
The Tribunal considered documents submitted in support of the applicant’s claims which had been listed earlier in the reasons for decision. Some of these documents, such as statements from Falun Gong practitioners, related to the applicant’s activities in Australia. Others purported to be official Chinese documents, such as a summons and detention notice. In relation to the official Chinese documents the Tribunal stated that it was “well known that forged or fraudulently obtained official documents [we]re readily available in China”. In view of the applicant’s evidence at the Tribunal hearing about his tourist visa application which contained false employment details, the Tribunal found that the applicant was “aware that fraudulently obtained documents [we]re readily available in China”. The Tribunal did “not accept that the Chinese documents that ha[d] been submitted [we]re genuine and that they too ha[d] not been fraudulently obtained or forged”.
The Tribunal concluded that while the matters it had canvassed would not individually have led it to make an adverse finding about the applicant’s credibility, considered cumulatively they led it to conclude that the applicant was not a credible witness. The Tribunal did “not accept that the applicant and his wife ran a printing shop” and printed Falun Gong related materials or that the applicant practised Falun Gong in China as claimed. The Tribunal did not accept the applicant was a Falun Gong practitioner in China or that he had experienced any of the problems claimed in China.
The Tribunal accepted that the applicant had attended a Falun Gong practice group in Parramatta and that he had been involved in Falun Gong related activities for over a year in Australia. In this context the Tribunal had regard to photographs and statements the applicant had submitted from Falun Gong practitioners in Australia, which it accepted were genuine. However the Tribunal did not accept the opinions expressed in such statements that the applicant was a genuine practitioner. In view of its finding that he was not a credible witness the Tribunal did not accept that the applicant was now a genuine practitioner or that he would practice Falun Gong on his return to China. It was not satisfied that the applicant had engaged in such conduct in Australia otherwise than for the purpose of strengthening his claim to be a refugee.
The Tribunal did not accept that there was a real chance that the applicant would be persecuted for a Convention reason if he returned to China now or in the foreseeable future.
These Proceedings
In his application for review, the applicant relied on three generally expressed grounds as follows:
RRT did not review DIAC’s mistake about my position in [named] real estate.
RRT did not weigh my evidencs (sic), saying my document is not true. It is discriminatory.
I will be sent to jail if I go back to China.
In the hearing it emerged that the solicitor for the Minister did not have a copy of the affidavit filed by the applicant annexing a transcript of the Tribunal hearing. There was also an issue as to whether the Tribunal had failed to comply with s.424A of the Migration Act 1958 (Cth) (the “Migration Act”). The hearing was adjourned and each party had the opportunity to make further submissions. It is convenient to consider the s.424A issues first.
Section 424A(1) of the Migration Act
Section 424A(1) of the Migration Act provides that 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.
Such information and invitation must be given to the applicant in writing, unless the Tribunal does so orally at the Tribunal hearing in accordance with the requirements of s.424AA of the Act (see s.424A(2A)). The Tribunal did not write to the applicant under s.424A. Nor is there any suggestion that the Tribunal met the requirements of s.424AA in relation to any issues raised with the applicant at the hearing. I note in that respect that under s.424AA(b) it is necessary for the Tribunal, among other things, to advise an applicant that he or she may seek additional time to comment on or respond to information. It is clear from the transcript of the Tribunal hearing that this did not occur.
There are a number of exceptions to the s.424A obligation in s.424A(3). In particular, the obligation does not arise in relation to information not specifically about the applicant or another person and just about a class of persons of which the applicant or another person is a member (such as independent country information). Nor does it apply to information that the applicant gave for the purpose of the application for review or information that the applicant gave during the process that led to the decision under review, other than information provided orally by the applicant to the Department.
The exceptions in s.424A(3) of the Act mean that in this case no issue arises about compliance with s.424A in relation to any written material provided by the applicant to the Department or the Tribunal for the purposes of his application for a protection visa and the review, including his written statement, documents relating to the practice of Falun Gong and purported official Chinese documents.
That leaves for consideration the oral evidence given by the applicant at the Departmental interview, information in or in relation to the tourist visa application made by the applicant and information from the Department (presumably from the applicant’s tourist visa file) about the Department’s contact with the property management company named as the applicant’s employer in his tourist visa application.
The Departmental Interview
The only evidence before the court of what occurred in the Departmental interview is the accounts of the delegate and the Tribunal in their respective reasons for decision. The Tribunal recorded that it had before it an audio recording of the interview. In the course of the Tribunal hearing the Tribunal raised with the applicant that he had told the Department that he started to practise Falun Gong because of the pain in his neck, whereas at the Tribunal hearing and in the statement to the Tribunal he had focused on a pain in his arm. These issues were discussed in connection with the applicant’s claim that the reason he started practising Falun Gong was to make his physical condition better. The applicant claimed that he told the Immigration Department that because of spinal pain and the pain in his neck, he had numbness in his arm. The Tribunal member put to him that she had listened to the tapes of the interview with the Department and that he did not mention that the sore neck led to a numbness in his arm (Tribunal hearing transcript p.24). The Tribunal did not put any such information to the applicant in accordance with s.424AA of the Migration Act. The applicant claimed he remembered what he had said.
What is in issue is whether the evidence in this respect given by the applicant orally to the Department is information that would be the reason or a part of the reason for the Tribunal affirming the decision under review within s.424A(1) of the Act.
As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ pointed out in SZBYRv Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17], the “reason for affirming” a decision of a delegate of the Minister for Immigration is that the applicant is not a person to whom Australia owes protection obligations under the Refugees Convention. Hence in determining whether certain material was information that the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision, it was necessary to consider whether the material in question contained in its terms a “rejection, denial or undermining” of the applicant’s claims to be a person to whom Australia owed protection obligations (SZBYR at [17]).
Their Honours went on to state in SZBYR at [18] that “if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the [applicant’s] evidence arising from inconsistencies therein, it [was] difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s424A(1)”. Their Honours were of the view that, as observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at [24] per Finn and Stone JJ, “information”:
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc. (citations omitted)
As their Honours stated in SZBYR at [18]:
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
In SZBYR a distinction was drawn between inconsistencies and the text of the material in question. In finding that passages in a statutory declaration from which inconsistencies with other evidence were later said to derive did not constitute “information” within s.424A(1) of the Act, their Honours rejected the proposition that s.424A was engaged by “any material that contained or tended to reveal inconsistencies in an applicant’s evidence” (at [19]).
Subsequently, in Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 the High Court referred to the scope of s.424A(1) in finding that a Tribunal letter to a visa applicant, despite its phrasing, was not sent pursuant to the obligation imposed by s.424A of the Act because it was an invitation to comment on perceived inconsistencies and contradictions. (See SZGUR at [9] per French CJ and Kiefel J.) The inconsistencies and contradictions referred to in that case were, as described by their Honours, contradictions and inconsistencies between what the applicant had stated orally and in writing to the Tribunal variously constituted during the iterations of the review process. It was in that context that their Honours made the point at [9] that:
…the existence of “inconsistencies” and “contradictions” in an applicant’s testimony and written submissions to the Tribunal is not “information” of the kind to which s 424A is directed. As was explained by the plurality in SZBYR v Minister for Immigration and Citizenship, the term “information” in s 424A does not extend to the Tribunal’s “subjective appraisals, thought processes or determinations”. Their Honours said:
“However broadly “information” be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.” (Footnotes omitted)
The exclusion of this class of information from the obligation imposed by s.424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected by the decision any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
In this case, as the first respondent submitted, any inconsistency between the oral evidence given by the applicant to the Department and the evidence he gave to the Tribunal or any omission from his oral evidence to the Department did not have to be put to him under s.424A of the Act.
The information about the extent and nature of the physical condition of the applicant that led him to practice Falun Gong is not information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. While the fact that that information is not expressly mentioned by the Tribunal in its reasons does not mean that it cannot constitute information for the purposes of s.424A of the Act (see Khan v Minister for Immigration and Citizenship and Another (2011) 192 FCR 173; [2011] FCAFC 21), it cannot be said that the oral evidence that the applicant gave to the delegate about the precise extent of the physical condition from which he suffered which he said led to his practice of Falun Gong was centrally relevant to the Tribunal’s consideration. It was not a matter addressed in the findings and reasons part of the Tribunal decision as relevant to the applicant’s credibility or otherwise. Even if the applicant’s oral evidence to the Department were to be seen as something other than a mere source of inconsistency, in this case it can be inferred from the evidence before the court as to the nature of such material and the absence of any consideration by the Tribunal in the findings and reasons part of its decision of such material that it was not at any time relevantly considered by the Tribunal to be the reason or part of the reason for affirming the decision under review. (See MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 438; [2008] FCA 319 and authority cited therein.)
It has not been established that the Tribunal failed to comply with s.424A of the Act by failing to put to the applicant in accordance with that provision or s.424AA of the Act the oral evidence that he gave at the Departmental interview, whether in relation to the extent and place of his bodily pain or otherwise.
The Tourist Visa Application and Information apparently on the Departmental file
It is apparent from the delegate’s decision, the transcript of the Tribunal hearing and the Tribunal reasons for decision that the Tribunal had before it not only a tape of the applicant’s interview with the delegate but also written material obtained from a source other than the applicant consisting of a copy of his application for the tourist visa on which he travelled to Australia (which, it may be assumed, would include any supporting documentation) and evidence (apparently from the Departmental file in relation to the tourist visa application) recording that the Department had contacted the Chinese company described as the applicant’s employer in the tourist visa application and that the company confirmed his employment.
I note first that neither the delegate’s brief account of the interview with the applicant or the Tribunal’s detailed summary of that interview makes reference to any aspect of such information having been raised with the applicant by the delegate. The applicant was recorded as having told the delegate that he worked for a mining company in Fushun City. He claimed in his protection visa application that he did so from October 1983 to September 2009 and that the police had told his employer to dismiss him. However the delegate found that the applicant was a full-time employee of a property management company in February 2010 as claimed in his tourist visa application. The delegate’s findings refer to the applicant’s claimed employment and the Department’s investigation as follows:
The applicant’s evidence concerning his introduction to Falun Gong via the photocopy business his wife operated is vague, lacks substantiating detail and appears to not easily fit the evidence given to the Department in his tourist visa application. The evidence given to the department in his tourist visa application was that he was employed by a property management company called [G.N.X.] Property Management Co. Ltd. at the time (February 2010). This evidence was tested by the department at that time by independently researching the company’s contact details and confirming with the company by phone that it employed the applicant. In the protection visa application before me, the applicant states he was employed as a chief supervisor of production of a company called […] of Fushun[…]. According to documents submitted to the Department with this application, the applicant was fired from this company on 20 July 2009. As noted above, the applicant was a full-time employee of a property management company in February of this year, which implies that either the police influence was not strong enough to prevent him from getting a new job and he does not face ongoing employment related harassment due to an alleged association with Falun Gong, or that the applicant’s claims in relation to his losing his job are fabricated.
Subsequently the applicant provided a number of documents to the Tribunal in support of his review application, including a statement in which he took issue with the delegate’s reasons. Relevantly, the applicant stated that at the time that he applied for a tourist visa to travel to Australia he had authorised an agent in China to handle the whole application process, that he was in Fushun City in February 2010, and that the travel agent in China had fabricated the materials for his visitor visa application. He offered to submit evidence to prove that in February 2010 he was in Fushun City (presumably rather than in the place where the property management company was situated).
At the Tribunal hearing the applicant confirmed that he had worked for a mining company in Fushun City, but confirmed that he had stopped working in August 2009 and that he did not have another job after that before he came to Australia. The Tribunal put to the applicant that in his tourist visa application he had said he had worked for a different company, being the named property management company. The applicant claimed that he had never worked for the property management company, that a migration agent had done “all those things” and that because he had stated that he worked for the property management company he had been granted a tourist visa (Transcript pp. 12-13).
The Tribunal also asked the applicant who a named woman (referred to herein as Ms LH) was (Transcript p.13). It appears that this was also information obtained from a third party. There is no reference to Ms LH in the protection visa application or written material provided by the applicant in connection with the protection visa application or review or in the earlier part of the Tribunal hearing. The applicant responded that Ms LH was the manager of the named property management company. He confirmed that this company existed. When asked if he knew people who worked there, he said that the migration agent had arranged those things. He confirmed that he had never worked for the property management company. When asked whether when he filled in his tourist visa application and signed it he had thought it was odd that the agent had put down false employment information, the applicant stated that he did not sign the tourist visa application (or the passport) and that the agent did this for him (Transcript p.13).
The Tribunal then put to the applicant (Transcript p.14) that the Department of Immigration had “called up” the property management company to verify whether he worked there, and that they said “yes”. When asked how he could explain this, the applicant stated:
I guess maybe the company want to protect the reputation of the company, that’s why they said that. The other thing I know is that I came together with the person named [Ms LH], however the migration agent will pay for all the travelling and accommodation fee of [Ms LH].
When asked if he knew the agent was going to lie about his employment details, the applicant stated that he only knew after he got the visa and was asked by the agent to go to Nanning City to have some sort of training. He stated that “At that time I knew that I will sort of go together with a company” (Transcript p.15). He explained that the agent had to let him know what company it was and why he got his visa before he left China, so that he could answer questions if asked by Customs in China or Australia. The applicant claimed that with his real identity and real details it would not have been possible for him to get the visa because he was a Falun Gong practitioner and he thought they had a record of that fact. He had told the agent that as long as he could get a visa, he did not care how he did it. He did not know if the agent had lied about anything else. He confirmed that the tourist visa application was made in his real name (Transcript pp.15-16).
The Tribunal did not put any of the information about the content of the applicant’s tourist visa application or the Department’s contact with the property management company or Ms LH to the applicant in writing in accordance with procedures in s.424A of the Act or in accordance with the requirements of s.424AA of the Act.
The first respondent submitted that the tourist visa application did not have to be put to the applicant because at the Tribunal hearing it was referred to only as a source of inconsistency and that it was not therefore “information” within the meaning of s.424A(1) of the Act. It was further submitted that because the inconsistency discussed at the Tribunal hearing was absent from the relevant part of the Tribunal’s findings and reasons this indicated that it was not relevantly considered by the Tribunal to be the reason or part of the reason for affirming the decision under review.
The first respondent also submitted that while the Tribunal had referred in its findings and reasons to the discussion of the tourist visa application at the hearing to ground the finding that the applicant was aware that fraudulently obtained documents were readily available in China, this was a finding as to the applicant’s subjective state of mind arising out of the discussion at the hearing and hence was a part of the Tribunal’s subjective appraisals, thought processes or determinations and not “information” attracting the obligation in s.424A(1) of the Act.
In oral submissions the solicitor for the Minister contended that in SZGUR the High Court had endorsed the view taken stated in SZBYR that the existence of contradictions and inconsistencies did not amount to information within the meaning of s.424A of the Act.
However in this case the information in the tourist visa application and Departmental file, in particular the documents about the applicant’s supposed employment with the property management company and the Department’s contact with that company, was not merely information that contained or tended to reveal inconsistencies in the applicant’s evidence.
As pointed out in SZBYR at [17], in determining whether information would be the reason or part of the reason for affirming the decision under review:
The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.
The “information” must be assessed “in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal” (MZXBQ at [27] per Heerey J). It has been accepted that it may be appropriate to have regard to the Tribunal’s reasons in determining whether the Tribunal considered the information to be the reason or part of the reason for affirming the decision under review (SZMNP v Minister for Immigration and Citizenship [2009] FCA 596) albeit the reasons are not conclusive in that respect (see Khan).
In this case the delegate relied on this information to find that the applicant was in employment in February 2010 and hence that he did not face ongoing employment-related harassment or that his claims about losing his job were fabricated. In contrast to the approach taken by the delegate, in its findings and reasons the Tribunal did not find that the applicant had been working for the property management company in February 2010. Rather, the Tribunal had regard to a number of matters in finding that the applicant was not a credible witness and that it did not accept that he and his wife ran a printing shop or printed Falun Gong related materials or that he practiced Falun Gong in China and experienced the problems claimed. One of these matters related to the documents submitted by the applicant.
Relevantly, the applicant had submitted copies of a number of documents to the Department in support of his application, in particular what the Tribunal described in its findings and reasons as “official Chinese documents”. It would appear that this concept would encompass the Public Security Bureau Punishment Decision dated 9 August 2009 and the Summon Certificate dated 20 May 2010. It may also be intended to include the 2008 Individual Business Licence of the applicant’s wife and Hospital records for the applicant dated in August 2009. In addition, the applicant provided a notice from the Fushun Mining Company dated 20 August 2009 stating that he had been fired for participating in Falun Gong activities.
The Tribunal found:
The applicant has submitted several documents to the Department and the Tribunal in support of his claims (see paragraphs 22, 24, 57, 133 and 134) which the Tribunal has considered. Some of these documents, such as statements from Falun Gong practitioners, relate to the applicant’s activities in Australia and others purport to be official Chinese documents, such as the summons and detention notice.
In relation to the official Chinese documents, it is well known that forged or fraudulently obtained official documents are readily available in China. In view of the applicant’s evidence to the Tribunal about his tourist visa application which contained false employment details, the applicant is himself aware that fraudulently obtained documents are readily available in China. The Tribunal does not accept that the Chinese documents that have been submitted are genuine and that they too have not been fraudulently obtained or forged.
The Tribunal then went on to conclude:
Credibility
The above matters individually would not have led the Tribunal to make an adverse finding about the applicant’s credibility. However, cumulatively, they have led the Tribunal to conclude that the applicant was not a credible witness. The Tribunal does not accept that the applicant and his wife ran a printing shop, that they printed Falun Gong related materials or that the applicant practised Falun Gong in China as claimed. Thus, the Tribunal does not accept that the applicant was a Falun Gong practitioner in China or that he experienced any of the problems in China claimed.
In other words, the Tribunal addressed the documents submitted by the applicant in the course of considering the applicant’s credibility (not thereafter). The Tribunal’s conclusion that it did not accept that the official Chinese documents were genuine and that they had not been fraudulently obtained or forged preceded the credibility finding which was based on what it described as the “above matters” considered cumulatively which would include the finding about the official documents not being genuine.
In circumstances where the applicant claimed to have lost his employment and to have a fear of harm based on his alleged association with Falun Gong, the information from another source that he was a full-time employee of a property management company in February 2010 and that this had been confirmed to the Department by the company was, if true, centrally relevant to whether he had experienced or had a fear of adverse employment consequences. It was so considered by the delegate. In that sense it was information that in its terms undermined the applicant’s claims to be a person to whom Australia owed protection obligations (see SZBYR at [17]). The fact that it was not ultimately relied on for this purpose in the Tribunal’s findings and reasons in relation to such an issue is not such as to warrant an inference that the information was not subject to the s.424(1) obligation having regard to the nature of the information, the use made of it by the delegate and the manner in which it was raised with the applicant at the Tribunal hearing. Hence it had to be put to the applicant in accordance with s.424A or in accordance with s.424AA of the Act.
In any event, even if the employment information in the applicant’s tourist visa application and the Departmental file is to be seen in light of the applicant’s claim at the Tribunal hearing that his agent in China had fabricated material in his visitor visa application, it can be inferred that this was information that the Tribunal considered would be part of the reason for affirming the decision under review as relevant to whether the Tribunal gave weight to or rejected as forged or fraudulently obtained the official Chinese documents the applicant submitted. Such information was distinct from the Tribunal’s subjective appraisals, thought processes or determinations about the applicant’s evidence, awareness or state of mind about the availability of fraudulently obtained documents in China. It constituted “information” within s.424A of the Act. The potential use of this information as relevant to the genuineness of official Chinese documents would not have been immediately apparent in the absence of the Tribunal giving the applicant clear particulars and ensuring, as far as reasonably practicable, that he understood why it was relevant to the review and the consequences of it being relied on. Indeed, it may well be that the Tribunal’s failure to explain the dispositive relevance of this information could be seen as a failure to comply with s.425 of the Act. As this was not addressed in submissions I have not considered it further. I am satisfied that the Tribunal failed to comply with s.424A of the Act in relation to such information.
Grounds raised by applicant
For the sake of completeness I have also considered other issues raised in the grounds in the application and in oral submissions.
The first ground in the application is that the Tribunal did not review the Department’s mistake about the applicant’s position in the property management company in China. The applicant appeared to take issue with the fact that the Tribunal did not expressly address the Department’s view that he had been working for the property management company in February 2010. In fact the Tribunal accepted that the tourist visa application contained false employment details.
Insofar as this is a general complaint about the conduct of the review, the Tribunal’s review of the delegate’s decision is a review de novo (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [40] – [44], Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11 at [16] – [18], [37] – [38], [69] – [71]). It was not obliged to address whether the delegate had made particular “mistakes” in his decision. This ground is not made out.
Ground two is that the Tribunal did not weigh the applicant’s evidence, but found that his documents were “not true”. In oral submissions the applicant submitted that the Tribunal erred in finding that his documents were false and failing to verify them. This appears to be a reference to the documents said to be official Chinese documents such as the summons and detention notice as well as documents about the applicant’s employment with a mining company, a hospital invoice and medical records and a business licence for the photocopying shop. The Tribunal accepted the genuineness of the documents about the applicant’s Falun Gong activities in Australia. The applicant’s contention was that the Tribunal’s attitude was unfair and biased.
The Minister submitted that the Tribunal was entitled to reach a view in relation to the genuineness of the applicant’s Chinese documents and that it had not simply found that because forged documents were easily obtained in China the documents he submitted were necessarily forged. It was submitted that the Tribunal had appraised the documents, considered the applicant’s credibility and then concluded that the documents were not genuine. It was also submitted that reading the Tribunal reasons fairly and with an eye not too keenly attuned to error it could not be said that the Tribunal had closed its eyes to these documents and simply considered the general state of affairs in China.
It is the case that in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [49] McHugh and Gummow JJ stated:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
However this is not such a case. The Tribunal did not give the corroborative documents no weight after having arrived at a strong view adverse to the applicant’s credit. Indeed, contrary to the first respondent’s contention, the conclusion about these documents was not based on an adverse credibility finding. Rather, the Tribunal had regard to its finding that it did not accept that the Chinese documents submitted by the applicant were genuine as one of the factors that cumulatively led it to reject the credibility of the applicant.
However this does not of itself establish jurisdictional error. The Tribunal did not simply give no weight to or reject the documents provided by the applicant. It gave reasons, based on independent country information, the material in the tourist visa application and the applicant’s evidence for the view that it took.
The findings were open to the Tribunal on the material before it for the reasons it gave even if a different decision-maker might not have reached the same decision on the material before the Tribunal. It has not been established that the findings were so unreasonable no reasonable decision-maker could have made them. Insofar as the applicant took issue with the fact that the Tribunal made its decision about his credibility based on this and other findings, credibility findings are a matter for the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1).
I have considered the possibility that the applicant intended to assert that there was bias on the part of the Tribunal. However the fact that the Tribunal made credibility findings based in part on his oral evidence as well as the other material before it is not such as to establish either actual or apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).
In oral submissions the applicant took issue with the fact that at the Tribunal hearing the Tribunal asked him a question about a book about Falun Gong, in particular about whether there were prohibitions on eating. He claimed that after he gave his answer the Tribunal member said, “But there is no such thing about food being prohibited in the book”. On this basis he submitted that the Tribunal was or appeared to be discriminating against him.
It appears that this may be intended to be a reference to the part of the Tribunal hearing in which the Tribunal member asked the applicant what the Zhuan (described as the “Ja” in the transcript) Falun said about eating meat (Transcript pp.28 - 29). The fact that the Tribunal raised with the applicant his knowledge of an aspect of Falun Gong principles and then put to him the Tribunal’s understanding that he had not responded correctly in relation to what was stated in the Zhuan Falun is not indicative of actual or apprehended bias. It was open to the Tribunal, as an inquisitorial body, to test the applicant’s claims and his knowledge of the principles of Falun Gong. Even if the Tribunal may be seen as expressing scepticism about the applicant’s knowledge in its disagreement about his view of the principles of Falun Gong, this is not such as to demonstrate actual or apprehended bias. Rather, the applicant was being alerted to the Tribunal concerns in this respect and given the opportunity to address the issue.
Actual bias is not easily proved. It has not been established that the Tribunal had reached a state of prejudgment or that it was so committed to a conclusion (either generally or in relation to the lack of genuineness of the official documents submitted by the applicant) as to be incapable of alteration whatever evidence or arguments may be presented in the sense considered in Jia Legeng. The Tribunal findings and reasons and what occurred at the Tribunal hearing are not such as to establish actual bias. (See SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] – [38]). The mere fact of adverse findings does not give rise to an inference of actual bias. Indeed, even if it were to be established that the findings with which the applicant takes issue were contrary to the evidence, or the result of a flawed reasoning process, that would not be such, in the circumstances of this case, to establish that the Tribunal embarked on the case with a closed mind that was not open to persuasion.
Nor is this a case of apprehended bias seen from the perspective of the reasonable observer properly informed as to the nature of the proceedings, the matters in issue and the conduct in question. (See Re Refugee Review Tribunal; Ex parte H at [27] – [28] per Gleeson CJ, Gaudron and Gummow JJ.) The manner in which the fact finding was conducted by the Tribunal is not such as to give rise to a reasonable apprehension of bias. As Allsop J, with whom Moore and Tamberlin JJ agreed, pointed out in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [115]:
By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error.
It cannot be said that the fact-finding was conducted in a manner that could be described as unreasoned or mere assertion lacking rational or reasoned foundation or plainly and ex facie wrong or selective of material going one way in the sense considered in NADH. Apprehended bias is not established merely by adverse findings or factual error or irrationality (SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [36] per Bennett J). As Flick J stated in SZORL v Minister for Immigration and Citizenship [2011] FCA 553 at [23]:
If an allegation of bias is to be made out, a party must do more than point simply to the fact that evidence has not been accepted or to the fact that evidence has been tested during the course of a hearing or that reasons have been given for rejecting that party’s claim or evidence. Such factors, standing alone, establish no more than the Tribunal discharging its function of reviewing the evidence and making findings of fact and providing reasons for a decision reached. It is the very task entrusted to the Tribunal to consider and evaluate and test the evidence and claims being advanced; its task is not the unquestioning acceptance of claims being made.
Insofar as the applicant may be seen as raising a concern that the Tribunal did not make inquiries as to the genuineness of the official Chinese documents, it has not been established that the Tribunal was obliged to make such an inquiry or that the lack of inquiry otherwise demonstrated jurisdictional error (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39). As expressed, ground two is not made out.
Ground three, in which the applicant claimed he would be sent to jail if he went back to China, seeks impermissible merits review. However as there was a failure by the Tribunal to comply with s.424A of the Act the matter should be remitted for redetermination according to law.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 30 May 2012
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