SZRRN v Minister for Immigration

[2013] FMCA 3

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRRN v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 3

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant failing to attend Tribunal hearing – Tribunal in its reasons referring to oral evidence given by the applicant to the Minister’s delegate – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) considered.

Migration Act 1958 (Cth), ss.240, 424A, 424AA, 425, 426A

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NAVX v Minister for Immigration [2004] FCAFC 287
SAAP v Minister for Immigration (2005) 228 CLR 294
SZBYR v Minister for Immigration (2007) 235 ALR 609
VAF v Minister for Immigration (2004) 206 ALR 471

Applicant: SZRRN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1646 of 2012

Judgment of: Driver FM

Hearing date: 19 December 2012

Delivered at: Sydney

Delivered on: 1 February 2013

REPRESENTATION

Counsel for the Applicant: Mr J D Smith, with Mr B C Dean

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application as amended on 6 December 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1646 of 2012

SZRRN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. Section 424A of the Migration Act 1958 (Cth) (Migration Act) is one of the most litigated provisions in Commonwealth statute law. This case is yet another example of the plethora of technical issues that have been raised in cases involving the interpretation of the section. The utility of the section is highly questionable when compared with the dynamism and flexibility of the common law rules of procedural fairness[1]. The section sits as a centrepiece (along with s.425) of the statutory code of procedure which binds the Refugee Review Tribunal (the Tribunal). It is not for this Court to seek to release the Tribunal from the strictures of that code of procedure which have been imposed by Parliament. It is, however, a proper function of the Court to attempt to interpret the requirements of the section in a rational and consistent way, properly informed by the principles of procedural fairness under the general law and by reference to the exhortative guidance provided by s.420 of the Migration Act.

   [1] It is certainly true that s.424A(3)(a) has relieved the Tribunal of the burden of disclosing country information but, as much of the litigation over reports of Independent Merits Reviewers has shown, in many cases fairness requires the disclosure of that material.

2. The application before the Court is to review a decision of the Tribunal dated 27 June 2012 and certified on behalf of the Tribunal’s District Registrar the following day.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.   The applicant is from Fujian Province in China and, relevantly, had made claims of persecution as a Christian.  The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of China who arrived in Australia on 3 May 2008 on a Subclass 571 student visa.  The visa ceased on 5 June 2008 and the applicant was granted a further Subclass 571 visa which ceased on 3 December 2010.  On 4 March 2011 the applicant was located working and was detained.  The applicant applied for a protection visa on 29 March 2011.

4. The applicant’s claims for protection are set out in a statement on pages 38 to 41 of the court book (CB).  In summary, the applicant claims that she was a member of a Christian church of the “Shouter” denomination in China.  She claims she was taken by police to a police station where her mother was beaten, and she was slapped.  Her mother lost her job as a result, and then was nearly caught by police again.  Police regularly attended the applicant’s school to question the applicant about her mother’s whereabouts.  The applicant claimed she was discriminated against at school and could not continue studying.  The applicant claims that if she returns to China she fears she will be persecuted and will not be allowed to return to study.  She fears that she will be arrested, that people will treat her distantly, and her neighbours will discriminate against her.

5. The applicant was, at the time of the delegate’s consideration, residing in Villawood Immigration Detention Centre, and on 19 May 2011 a delegate of the Minister interviewed her for the purpose of her application.  The delegate asked the applicant a number of questions about her Christian faith, and concluded “[h]aving considered the applicant’s answers to my questions about the Shouter faith, and the manner in which she gave her evidence, I am not convinced that she is a practicing Christian as she claims”[2].    

   [2] CB 54-56

6. On 24 May 2011, the delegate refused to grant the applicant a visa[3].  As noted above, the delegate did not accept that the applicant was a practising Christian as she claimed.  The delegate’s reasons for this view were that: 

   a)the applicant’s knowledge of the Bible was very limited; 

   b)the applicant’s answers were not given in a fluent or comprehensive manner that would be consistent with a person who reads the Bible several times a week;

   c)the applicant’s practical involvement in her church in Australia was very limited and her level of proselytisation was minimal. 

   [3] CB 57

7. The delegate also found that if the applicant was genuine in her fear of persecution, she would have applied for protection sooner. 

8. On 31 May 2011, the applicant applied to the Tribunal for review of the delegate’s decision[4].

   [4] CB58

9. On 8 June 2011 the Tribunal wrote to the applicant and informed her that it was unable to make a favourable decision based on the information before it[5].  The Tribunal invited the applicant to attend an interview on 20 July 2011.  The applicant provided a further statement to the Tribunal[6] and some documents translated from Chinese[7].  The applicant’s legal representatives provided written submissions and evidence[8].

   [5] CB 65

   [6] CB 79

   [7] CB 70

   [8] CB 83

10. On 22 September 2011 the Tribunal notified the applicant that it had decided to affirm the delegate’s decision (Tribunal’s First Decision).  The applicant sought judicial review of the Tribunal’s First Decision and it was quashed by consent by order of the Federal Court of Australia[9].  The Tribunal was ordered to determine the applicant’s application to the Tribunal according to law.

    [9] CB 123

11. On 4 June 2012 the Tribunal wrote to the applicant and informed her that it had considered the material before it, and was unable to make a favourable decision on that information alone[10].  The applicant was invited to attend a hearing on 26 June 2012.

    [10] CB 145

12. The applicant did not attend the hearing. 

13. On 27 June 2012 the Tribunal decided to affirm the delegate’s decision[11].  By the amended application, the applicant seeks judicial review of that decision.

    [11] The Tribunal’s decision record is at CB 166 to 180

The Tribunal’s decision

1. The Tribunal considered the evidence before it.  It:

   a)considered and summarised the applicant’s claims in her initial statement[12]; 

   b)listened to a recording of the applicant’s interview with the delegate and summarised its content[13];

   c)considered the delegate’s decision[14];

   d)considered the submissions and evidence that the applicant put forward to the Tribunal in July 2011[15];

   e)considered the record of the applicant’s evidence at the first Tribunal hearing[16];

   f)considered the First Tribunal Decision[17].

   [12] CB 170 [25]

   [13] CB 172–174

   [14] CB 175 [27]

   [15] CB 175 [28]-[39]

   [16] CB 175 [31]–177

   [17] CB 177 [32]

2. The Tribunal also satisfied itself that the applicant had been properly notified of the hearing that she did not attend[18].

   [18] CB 178 [35]–[42]

3. The Tribunal decided pursuant to s.426A of the Migration Act to make its decision on the review without taking any further action to enable the applicant to appear before it[19].

   [19] CB 179 [42]

4. The Tribunal’s findings and reasons commence at CB 179. Consistently with the circumstances where the applicant did not attend the hearing, the findings and reasons are straightforward. 

5. The Tribunal identified the legal principles to apply to the assessment of the applicant’s claims[20].

   [20] CB 179 [44]

6. The Tribunal identified the applicant’s claims[21].

   [21] CB 179 [45]

7. Paragraph [46] is the critical paragraph for the ground of review in the amended application.  In that paragraph the Tribunal:

   a)summarised the history of the applicant’s application and its review in the Tribunal;

   b)noted that the applicant was invited to attend but had not appeared; and

   c)set out the areas in which the Tribunal would have questioned the applicant.  Those areas were:

   i)the applicant’s “apparent” limited knowledge of some important aspects of Christianity before the delegate and the differently constituted Tribunal;

   ii)why the applicant had delayed in lodging the application; and

   iii)the applicant’s claims as to her pregnancy and further evidence as to the birth of her child and whether she had any specific claims as to the effect that the child may have on the applicant’s return to China.

8. The Tribunal found that, without the opportunity to discuss these issues in greater detail, the Tribunal was not satisfied “on the evidence before it” that the applicant is a Christian or that she suffered serious harm in China for reasons of her religion, or that there was a real chance that she would be persecuted in the future[22].

   [22] CB 180 [47]

The judicial review application

1. These proceedings began with an application filed on 27 July 2012.  The applicant now relies upon an amended application filed on 6 December 2012.  There is only one ground in that application:

   1.      The Tribunal failed to comply with s.424A(1).

   Particulars:

   The Tribunal considered that certain answers given by the applicant at an interview conducted by the delegate might be part of the reason for its decision [CB 179 (46)].  Those answers constituted information within the meaning of s.424A(1) and did not fall within any exception in s.424A(3).  The Tribunal did not provide written particulars of that information and so failed to comply with the obligation under s.424A(1).

2. The only evidence I have before me is the court book filed on 5 September 2012.  An affidavit by the applicant filed on 27 July 2012 was not read.  Also not read were affidavits by Alissa Maree Crittenden and Tara Jean Flynn filed on 21 November 2012 on behalf of the Minister.

3. The applicant contends that the Tribunal’s reasons for its decision disclose that, at the time the Tribunal issued its hearing invitation to the applicant, it apprehended that information given orally by the applicant to the Minister’s delegate at the interview conducted by the delegate might be a reason for affirming the decision of the delegate. The applicant contends that the Tribunal was obliged to disclose that information under s.424A(1). The applicant draws particular attention to the fact that information of that character is not excluded by s.424A(3) from the general obligation of disclosure[23].

   [23] See s.424(3)(ba)

4. The Minister contends that, properly understood, the Tribunal’s reasons did no more than identify issues which the Tribunal wished to discuss with the applicant at the hearing which she failed to attend.

Consideration

1. Section 424A provides:

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

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

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

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

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

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

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

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

   (3)  This section does not apply to information:

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

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

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

   (c)   that is non-disclosable information.

2. Notwithstanding the discretion as to the manner of disclosure conferred by s.424A(1)(a), the High Court has held that disclosure under the section must be in writing[24]. However, following further amendments to the Migration Act, where the Tribunal conducts an oral hearing, it is able to meet its obligation of disclosure under s.424A orally. Section 424AA provides:

   [24] SAAP v Minister for Immigration (2005) 228 CLR 294; SZBYR v Minister for Immigration (2007) 235 ALR 609 at [14]

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

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

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

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

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

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

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

3. Parliament’s intention in enacting s.424AA was to restore the discretion as to the manner of disclosure of adverse information that had been stripped away by the High Court. An important point to note here, however, is that the Tribunal’s ability to discharge its obligation of disclosure orally at a hearing is dependent upon the willingness of an applicant to appear before the Tribunal in response to an invitation issued under s.425. If an applicant declines such an invitation or simply fails to appear the option of discharging the Tribunal’s obligation orally is removed. The resulting inflexibility (and the additional burden imposed on the Tribunal) is obvious. That inflexibility and burden could be removed if the general law rules of procedural fairness were permitted to apply. Under the general law, there is no general obligation to provide disclosure of adverse material in writing. Further, under the general law, if an applicant is offered a fair hearing opportunity but for no good reason declines or avoids that opportunity, there would ordinarily be no continuing obligation on the decision maker to provide any further disclosure of either issues or information.

4. Secondly, the fact is that the applicant (who was represented by a migration agent) responded to a hearing invitation issued to her by the Tribunal as previously constituted that she would attend the Tribunal hearing with her representative[25].  Further, the representative provided additional information and a submission to the Tribunal in anticipation of that hearing[26].  The applicant and her agent attended a hearing before the Tribunal as previously constituted.

   [25] CB 68

   [26] CB 70-115

5. The hearing before the Tribunal as previously constituted was conducted, and the information and submissions provided to that Tribunal were made, in the knowledge of the decision of the Minister’s delegate.  That decision of the Tribunal was set aside for reasons which are not presently relevant but the point is that the applicant (and her representative) could have been in no doubt that her credibility was in issue and, in particular, that the issue of whether she was a Christian as she claimed was a live issue. 

6. The applicant was invited to appear before the present Tribunal on 26 June 2012 by letter dated 4 June 2012[27].  The applicant’s representative responded by letter dated 8 June 2012 that she had had no contact with the applicant since the notification of the first Tribunal decision dated 22 September 2011[28]. No issue was taken with the effectiveness of the invitation issued pursuant to s.425. On the basis of the facts and circumstances disclosed by the evidence before me, I am confident that no issue of procedural unfairness would arise in this case under the general law. The issue which arises is one of the technical interpretation of s.424A.

   [27] CB 143

   [28] CB 156

7. The relevant part of the Tribunal’s reasons is found at [46] and [47] of its decision:[29]

   As indicated above, the applicant has been interviewed by the Department and has had a hearing with a differently constituted Tribunal in which she elaborated on her claims to fear harm in China.  However, the applicant was invited to appear before the current Tribunal in order to give evidence and present arguments and advised that the Tribunal was unable to make a favourable decision on the evidence before it.  The Tribunal has been unable to locate the applicant and she has not contacted the Tribunal to provide an updated address, details of any legal representation, or any current telephone numbers to enable the Tribunal to contact her by telephone.  The Tribunal invited the applicant to appear before it in order to explore in further detail her claims regarding her experiences in China.  The Tribunal would have wished to discuss with the applicant her apparent limited knowledge of some important aspects of Christianity when interviewed by the delegate and the differently constituted Tribunal.  Although considered by the previous Tribunal and the delegate, the Tribunal would also have wished to explore the issue of the delay in the lodgement of the application with the applicant during the hearing.  The Tribunal would have also wished to discuss the applicant’s claims, as raised during the previous Tribunal hearing, as to her pregnancy and would have sought further evidence as to the birth of her child and whether she had any specific claims as to the affect that the child may have on her (the applicant) upon her return to China.

   Without the opportunity to discuss these issues in considerably greater detail, the Tribunal is not satisfied on the evidence before it that the applicant is a Christian or that she suffered serious harm in China for reasons of her religion.  Nor is the Tribunal satisfied that there is a real chance that the applicant would be persecuted for reason of her religion or for any other Convention reason in China now or in the reasonably foreseeable future.  The Tribunal is therefore not satisfied that the applicant has a well founded fear of persecution within the meaning of the Convention. (emphasis added)

   [29] CB 179-180

1. The Tribunal did not give the applicant written particulars of answers she gave to the delegate’s questions concerning her knowledge of the bible or attempt to ensure in writing that the applicant understood why that was relevant to the review and the consequences of it being relied upon, or invite the applicant to comment or respond[30]. The applicant contends that her oral answers given to the delegate were evidentiary material and accordingly constitute “information” within the meaning of s.424A[31].  Further, the applicant contends that the highlighted words at [46] of the Tribunal’s reasons disclose that (regardless of the Tribunal’s ultimate reasoning) at the time the hearing invitation was issued to the applicant, the Tribunal apprehended that the applicant’s answers to the questions put by the delegate to test her knowledge of the Bible might be a reason to affirm the delegate’s decision because it tended to show that the applicant was not a Christian as she claimed. 

   [30] See s.424A(1)(a)(c)

   [31] See SZBYR v Minister for Immigration op cit

2. I concede that the applicant’s case is fairly arguable.  The Tribunal referred at length and in detail to the interview conducted by the delegate on 19 May 2011[32].  In particular, the Tribunal referred to the answers given by the applicant to the questions asked by the delegate designed to test her knowledge of the Bible.  It is fairly arguable that the Tribunal’s highlighted words at [46] of its reasons are at least in part a reference back to that information.  However, those words do not disclose with any clarity that, at the time the hearing invitation was issued, the Tribunal was minded to affirm the delegate’s decision because of that information.  The Tribunal simply says in its reasons that it would have wished to discuss the applicant’s apparently limited knowledge of Christianity with her at a hearing.  In my view, that is nothing more than a statement that the Tribunal wanted to identify for the applicant at a hearing that an essential and significant issue in the review was her credibility and, in particular, the credibility of her claim to be a Christian.  This was not, in my view, a statement by the Tribunal that identified particular information that the Tribunal relied upon (or was disposed at any stage of the review to rely upon) to affirm the delegate’s decision.

   [32] CB 172-174

3. Further, and in any event, it could not be a jurisdictional error for the Tribunal to fail to give a written notice, pursuant to s.424A, prior to a hearing, so long as the Tribunal is able to comply with its obligation of disclosure orally, pursuant to s.424AA. Where an applicant fails to respond to a hearing invitation that opportunity remains open until the hearing day because the applicant might still appear. After that time, if the Tribunal is still minded to rely upon adverse information requiring disclosure pursuant to s.424A, then it must meet its obligation of disclosure in writing. But, if the Tribunal, in the absence of a hearing, is no longer minded to rely upon that adverse information, no disclosure obligation remains.

4. It follows that, unless the Tribunal’s reasons disclose that, following the applicant’s failure to appear at the hearing to which she was invited, the Tribunal regarded the applicant’s oral evidence to the delegate as a reason to affirm the delegate’s decision, the applicant’s case must fail.

5. I prefer the submissions of the Minister on the interpretation of the Tribunal’s reasons.

6. The Tribunal’s reason to affirm the delegate’s decision was that it “was not satisfied on the evidence before it” that the applicant was a Christian or that she had a well founded fear of persecution[33].

   [33] at [47]

7. The finding was probably inevitable.  The Tribunal had already formed the view that it could not make a decision favourable to the applicant based on the material before it[34].  That is why the applicant was invited to attend a hearing.  As French, Emmett and Dowsett JJ said in NAVX v Minister for Immigration[35] at [5]:

   In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

   [34] CB 145

   [35] [2004] FCAFC 287

8. The Tribunal’s reasons at [46] identify the areas of the applicant’s claims and evidence that the Tribunal considered required elaboration. But they are not “information” that the Tribunal “considered would be the reason, or a part of the reason, for affirming the decision that is under review” as those words are used in s.424A.

9. The Tribunal’s reason was that the applicant had not put forward sufficient evidence.  Paragraph [46] identified the gaps in the applicant’s evidence.

10. This is most evident in the last sentence of [46]. The Tribunal said that it would have wished to discuss the applicant’s pregnancy and any further evidence she might have as to the birth of her child and whether she had any specific claims as to the effect that the child may have on the applicant’s return to China.

11. There is no possible interpretation of that final sentence that could see it understood as a “reason for affirming the review”.  It is purely and simply the identification of an area that lacked detail and required further elaboration. 

12. I draw the same conclusion for the other areas that the Tribunal wished to discuss with the applicant.  The mere fact that the Tribunal wished to discuss certain issues with the applicant at a hearing does not establish that, at the time the hearing invitation was issued, particular information bearing upon those issues was information that the Tribunal was minded to rely upon to affirm the decision under review.

13. Further, in VAF v Minister for Immigration[36], Finn and Stone JJ held at 476-477:

    [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.

    [36] (2004) 206 ALR 471

14. That passage was approved by a majority of the High Court in SZBYR at [18].

15. The passage applies to the present decision. The matters identified by the Tribunal at [46] are not “information” within the meaning of section 424A. They are better characterised as “gaps, defects or lack of detail or specificity” in the applicant’s evidence.

16. As the Tribunal said at [47], it missed “the opportunity to discuss these issues in considerably greater detail”.  That is not language that suggests that the Tribunal relied on those issues for its decision.  Quite the reverse.  The Tribunal needed considerably more detail.  There were gaps and defects.  The Tribunal was not satisfied on the evidence before it.

17. I accept that the construction advanced by the Minister is the clearest and most natural way of interpreting the Tribunal’s reasons as a whole.  The construction advanced by the applicant requires paragraph [46] of the Tribunal’s decision to be read in isolation and in an over-zealous manner[37].

    [37] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Conclusion

1. The applicant has failed to demonstrate any jurisdictional error by the Tribunal.  It follows that the Tribunal decision is a privative clause decision and that the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  1 February 2013