SZRWG v MIAC
[2013] FMCA 53
•26 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRWG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 53 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming religious persecution in China –Tribunal doubting the applicant’s claims and failing to decide whether it was required to disregard conduct in Australia – jurisdictional error established – refusal of relief in the exercise of discretion. |
| Migration Act 1958 (Cth), s.91R |
| Kabir v Minister for Immigration [2010] FCA 1164 Minister for Immigration v SZJGV (2009) 238 CLR 642 SZJSP v Minister for Immigration [2007] FCA 1925 SZKGF v Minister for Immigration [2008] FCAFC 84 SZOZT v Minister for Immigration & Anor [2011] FMCA 411 SZOZT v Minister for Immigration [2011] FCA 1245 |
| First Applicant: | SZRWG |
| Second Applicant: | SZRWH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2180 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 30 January 2013 |
| Date of Last Submission: | 1 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Kessels Fragomen |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application as amended on 28 November 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2180 of 2012
| SZRWG |
First Applicant
SZRWH
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was made on 10 September 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, who are a father and daughter. The relevant protection claims were made by the first applicant (the applicant father). Any references in this judgment to “the applicant” are references to him.
The issue on which this case turns is the interpretation of s.91R(3) of the Migration Act 1958 (Cth) (Migration Act). I have found that the Tribunal misinterpreted the section but have decided to withhold relief in the exercise of judicial discretion.
The following statement of background facts is derived from the submissions of the parties.
The first applicant, a citizen of the Peoples Republic of China (Fujian Province), arrived in Australia on 6 December 2008. At the time of his arrival, he held a subclass 572 visa[1].
[1] Court Book (CB) 13
The second applicant, the daughter of the first applicant, was born in Australia on 9 October 2010[2].
[2] CB 39
On 2 November 2011, the applicants applied for protection visas[3]. This application was refused by the delegate on 13 March 2012[4].
[3] CB 1-37
[4] CB 43-61
The Tribunal affirmed the decision of the delegate on 10 September 2012[5].
[5] CB 114-143
Summary of the applicants’ claims
In a statement attached to his protection visa application, the first applicant made the following claims:
a)He is a Christian and, since being in Australia, has become involved in the Church of Jesus Christ and Latter Day Saints (LDS Church);
b)He returned to China for a visit in July 2010. At the request of a friend, he took to China some religious material, including a CD.
c)While in China he attended an LDS Church gathering and he decided to commit himself to the LDS Church.
d)On the way to another LDS Church gathering he was stopped and questioned by police. He was identified as a member of the LDS Church and the Police discovered that he was carrying the religious materials he had brought from Australia.
e)Upon return to Australia, the first applicant continued to be involved in the LDS Church. The police in China harassed his family as well as his wife’s family. This caused tension with his wife and, ultimately, led to the breakdown of his marriage.
f)A friend involved in the LDS Church in China, with whom he communicated via the internet, was arrested and has now disappeared.
g)He has two older daughters. He is concerned that the second applicant will face problems returning to China as a result of the one child policy.
Decision of the Tribunal
The Tribunal accepted that the first applicant was a member the LDS Church (a “Mormon”)[6]. However, the Tribunal did not accept that the first applicant had attended LDS meetings in China, or that he had taken religious material to China, or that he had been questioned and detained by police. These claims were found to be “lacking in credibility, internally inconsistent and implausible”[7]. Pursuant to s.91R(3) of the Migration Act 1958 (Cth) (Migration Act), the Tribunal disregarded the first applicant’s communication with LDS Church members in China because it found the first applicant engaged in this conduct for the sole purpose of strengthening his claim for refugee status[8].
[6] CB 135 at [78]
[7] CB 135 at [80]
[8] CB 137-138 at [89]
Although the Tribunal had concerns about the genuineness of the first applicant’s involvement with the LDS Church, it did not find it necessary to determine whether such conduct should be disregarded pursuant to s.91R[9]. This was because of its finding that the first applicant would not face persecution in China. The Tribunal held:
[9] CB 138 at [91]
Chinese citizens who are of the Mormon faith are able to practice [sic] their religion and do not face the threat of arrest, persecution or serious harm. The reports quoted above indicate that experts in their field are unaware of any mistreatment or harassment of Chinese Mormons by the Chinese authorities. The Tribunal accepts the applicant is a follower of the LDS Church and accepts that, as a baptised member of the church, he understands and follows the Church’s teachings and directions. The country information above indicates that the leaders of the LDS Church have reached a level of understanding with the Chinese authorities so that the following of the LDS Church is tolerated in China. Part of this understanding is that the usual requirement of members of the LDS Church to proselytise for a period in their lives with the church is suspended for members of the LDS Church who live in China. This, in part, is due to the understanding between the leaders of the LDS Church and the Chinese authorities that the LDS Church will be tolerated in China on the basis that its members do not proselytise. This understanding is also in place due to the teachings of the LDS Church, and in particular Article 12 and 13 of the Articles of Faith which states [sic] ‘We believe in being subject to Kings, presidents, rulers and magistrates, in obeying, honouring, and sustaining the law’. As the church in China is required to obey, honour, and sustain the law of the land, the church has accepted that its members should not proselytise in China or participate in any activity that is in conflict with the Chinese authorities.
…
If the applicant is a genuine member of the LDS Church, the Tribunal finds that the applicant would follow the guidance of the leadership of the church and he would accept and follow its articles of faith and would not be involved in any proselytising in China. Although the Tribunal notes that the applicant has stated that he wants to evangelise with the church and take on missionary tasks, the available country information indicates that the LDS does not engage in such actions in China. The Tribunal considers that if the applicant were to proselytise and take on missionary tasks in China he would be acting contrary to the position of the LDS Church and this would suggest that he is not a genuine Mormon. The applicant’s claim is that he is a genuine Mormon, and the issue before the Tribunal is whether he has a well-founded fear of persecution for reason of his Mormon beliefs. On the basis of the country information, the Tribunal finds there is not a real chance the applicant would face persecution if he returns to China and follows the LDS church (CB 138-139 at [92]-[93]).
Finally, the Tribunal held that the second applicant would not face persecution by reason of the Chinese Government’s family planning policies[10].
[10] CB 140 at [97]-[99]
The present application
These proceedings began with a show cause application filed on 4 October 2012. The applicants now rely upon an amended application filed on 28 November 2012. There is one particularised ground in that application:
1. The Tribunal fell into jurisdictional error by failing to consider whether the First Applicant faced a real chance of persecution in the PRC by reason of his religion.
Particulars
a. The First Applicant claimed that he will be persecuted in the PRC if he is involved in church activities in the PRC and will be unable to freely practice his religion [93].
b. The Tribunal accepted that the First Applicant has been attending the LDS Church in Australia since 2010 and was baptised in Australia in November 2011 [78]. The Tribunal had doubts about the genuineness of the First Applicant’s involvement with the LDS Church but did not disregard his involvement in the Church for the purposes of considering his claims pursuant to s91R(3) of the Migration Act 1958 [91].
c. The Tribunal found that the First Applicant:
i. would and should accept the limitations on his religion imposed on him by his own church as a result of an ‘agreement’ between the Church elders and the PRC government to restrict the activities of the Church and its’ followers in the PRC and so would not practice his religion freely [93]; or
ii. would not be a ‘genuine Mormon’ if he chose to practice his religion freely because he would be acting contrary to the edict of his Church [93]. The Tribunal did not refer to any evidence to support this finding.
d. As a result, the Tribunal did not properly consider the First Applicant’s claim because the Tribunal:
i. incorrectly reasoned that the restriction on the First Applicant’s religion could not amount to persecution because it was ‘consented’ to by the Church and/or
ii. did not consider what might occur if the First Applicant chose to practice his religion contrary to the restrictions imposed by the PRC Government and his Church despite the evidence that such conduct might result in serious harm.
I have before me as evidence the court book filed on 25 October 2012.
Both parties made oral and written submissions. The applicants assert that the Tribunal fell into error considering the first applicant’s claims of religious persecution, in effect, by failing to consider his claim as a matter of personal faith rather than by reference to the obligations of Mormons as members of that church. The Minister concedes that there may be cases in which personal faith is a question of significance requiring resolution by the Tribunal. However, the Minister submits that in this case the applicant simply claimed to be a Mormon and it was reasonable for the Tribunal to proceed on the basis that the applicant, if a genuine Mormon, would act consistently with the teachings of that church.
During the course of argument I invited further written submissions from the parties on the question of whether the Tribunal erred in its application of s.91R(3) of the Migration Act. It appeared to me that the issue in dispute between the parties only arose because the Tribunal did not make any clear finding pursuant to that section on whether it was required to disregard the applicant’s conduct in Australia.
The applicants filed further written submissions on that issue on 15 February 2013. They contend that the Tribunal erred by failing to determine whether it was required to disregard the applicant’s religious practice in Australia. They submit that relief should not be withheld in the exercise of discretion because it cannot be said that the grant of relief would not make a difference to the Tribunal’s eventual deliberations[11]. The Minister filed further written submissions on 1 March 2013. The Minister contends that the Tribunal did not err in its interpretation of s.91R(3) but, even if it did, relief should be withheld in the exercise of discretion.
[11] SZOOR v Minister for Immigration (2012) 202 FCR 1 at 24-25
Consideration
The parties agree that the issue raised in the amended application stems from the Tribunal’s reasons at [93][12] where the Tribunal said:
The applicant claims that the LDS Church operates underground in China and that it is not legal to attend. He claims that he will be persecuted if he is involved in church activities in China. He claims he will be unable to freely practice his religion in China. He claims he has a Mormon friend who has disappeared. The Tribunal does not accept these claims. The Tribunal has rejected the applicant’s claims relating to his attendance of an underground church gathering in July 2010, and subsequent police interest. The Tribunal considers the claims are not supported by the independent information discussed above. The Tribunal has rejected the applicant’s claim about his disappearance. If the applicant is a genuine member of the LDS Church, the Tribunal finds that the applicant would follow the guidance of the leadership of the church and he would accept and follow its articles of faith and would not be involved in any proselytising in China. Although the Tribunal notes that the applicant has stated that he wants to evangelise with the church and take on missionary tasks, the available country information indicates that the LDS does not engage in such actions in China. The Tribunal considers that if the applicant were to proselytise and take on missionary tasks in China he would be acting contrary to the position of the LDS Church and this would suggest that he is not a genuine Mormon. The applicant’s claim is that he is a genuine Mormon, and the issue before the Tribunal is whether he has a well-founded fear of persecution for reason of his Mormon beliefs. On the basis of the country information, the Tribunal finds there is not a real chance the applicant would face persecution if he returns to China and follows the LDS church.
[12] CB 139
The Tribunal’s finding was part of its assessment of what, if any, future harm would be faced by the applicant in China. I accept the Minister’s submission that the Tribunal did not err in the manner asserted in the amended application. The applicant claimed to fear harm as a Mormon. He did not claim to fear harm as an intended prostelyser, other than a Mormon. The Tribunal does not have to consider a claim that is not made. However, as the argument developed at the trial, the matter does not end there.
The applicant had claimed that he became interested in Mormonism in Australia in 2009. He claimed that he had been baptised in Australia in November 2011. Because the applicant’s claims were based on his religious practice in Australia the Tribunal needed to consider the application of s.91R(3) of the Migration Act. If the Tribunal had found that the applicant was not a genuine Mormon then it would not have needed to have considered the risk of harm facing the applicant as a Mormon in China.
At [89]of its reasons[13] the Tribunal disregarded, pursuant to s.91R(3) conduct engaged in by the applicant in sending religious materials to China. However, the Tribunal made no decision on whether it was required to disregard the applicant’s conduct in Australia of joining the Mormon church and being baptised. At [78] of its reasons[14] the Tribunal accepted the fact of the applicant having attended the Mormon church in Australia since 2010 and his baptism in November 2011.
[13] CB 137
[14] CB 135
The Tribunal dealt with the application of s.91R(3) to that conduct at [91] of its reasons[15]:
The Tribunal has accepted above that the applicant has been baptised and attends the LDS Church in Australia. However the Tribunal has some concerns about the genuineness of his involvement with the LDS Church, following the adverse findings above. For example, the Tribunal notes the applicant was baptised in the Church on 19 November 2011, several weeks after making his application for protection. While it accepts that he only began attending the church regularly from 2010 and was required to undergo a process to achieve his baptism, he also gave evidence to the Tribunal that he sought to be baptised in China during his visit in July 2010 because he understood the process for baptism was simpler there. The tribunal is concerned that this indicates the applicant may have become baptised solely for the purpose of strengthening a refugee claim. The Tribunal is also concerned that the applicant’s evidence that he wants to evangelise with the Church and take on missionary tasks suggest his motivation in joining the LDS Church may be to strengthen a refugee claim. However, the Tribunal is aware that for s91R(3) to be enlivened, the conduct must be engaged in for the sole purpose of strengthening a refugee claim (MIAC v SZJGV (2009) 238 CLR 642, per French CJ and Bell J at [13], per Crennan and Kiefel JJ [59]-[60]). Furthermore, if it is the case that the conduct would not strengthen the applicant’s case, then it need not be disregarded: MIAC v SZJGV (2009) 238 CLR 642, per Crennan and Kiefel JJ at [64]. For the reasons given below, the Tribunal finds that the applicant does not face a real chance of persecution on the basis of his religion, being his LDS faith, if returned to China in the reasonably foreseeable future. Therefore it is unnecessary for the Tribunal to determine whether it must disregard his involvement in the church for the purposes of s91R(3) because the Tribunal is not prevented from taking the conduct into account given this conclusion.
[15] CB 138
The Tribunal noted correctly that for the section to apply to require the Australian conduct to be disregarded the sole reason for that conduct must be to strengthen the applicant’s refugee claims. The Tribunal made no finding on what the applicant’s motivation for his conduct was. The Tribunal reasoned that it did not have to make a determination under s.91R(3) because, on analysis on his claims, there is no real chance of him facing persecution in China on the basis of his Mormon faith. My concern is that the Tribunal’s reasoning follows, in effect, the same approach to the interpretation of s.91R(3) as I adopted in SZOZT v Minister for Immigration & Anor [2011] FMCA 411 at [14]-[17] where I said:
The other possible issue concerned the Tribunal’s examination of s.91R(3) of the Migration Act. There are many difficult and unhelpful provisions in the Migration Act with which the Tribunal is required to grapple. Section 91R(3) is, in my view, the most difficult and unhelpful. It is so difficult and unhelpful that Tribunal members prudently attempt to avoid dealing with it at all. In the present case, the Tribunal grappled with the application of that provision at [81] and [82] of its reasons (court book, pages 135-136):
The Tribunal also believes that the applicant’s conduct in Australia supports the view that he is fabricating his claims to being homosexual. He has presented a membership card from the Columbian Hotel and has claimed to have attended those premises on three occasions since December 2010. The Tribunal accepts that he has done so, however does not believe that this evidences that he is homosexual or that he engaged in this conduct for any purpose other than strengthening his application to be a refugee. He only commenced his involvement with the Columbian Hotel after the interview with the Department when he had indicated that he had heard information about gay organisations and lifestyle in Australia. This was a substantial time after his arrival in Australia and he has not taken any further action. He claimed during the hearing before the Tribunal that despite knowing of areas of gay culture he did not go out alone and had difficulty locating it which is not plausible in the Tribunal’s view. The applicant is well travelled in a range of countries and the Tribunal does not accept he would be so unwilling to engage to a greater extent with gay culture in Sydney were he homosexual. Having indicated during his interview with the Department that he had information about such matters, he has engaged to the most limited extent with the gay community in Sydney.
In the Tribunal’s view, the available evidence supports the conclusion that the applicant has become a member of and attended on limited occasions the Columbian Hotel only for the purpose of presenting this information to strengthen his claim to be a refugee. Where he genuinely interested in engaging with gay culture in Sydney, one could have expected that he would have taken greater steps to do so. For these reasons, the Tribunal must disregard the applicant’s conduct in Australia in determining whether he holds well-founded fear in accordance with the requirements of s.91R(3) of the Act.
The Minister submits that the Tribunal was required to disregard the identified conduct of the applicant in Australia once the Tribunal had determined that the applicant had engaged in that conduct for the purposes of strengthening his application to be a refugee. The Minister submits that on the authority of the decision of the High Court in Minister for Immigration v SZJGV (2009) 238 CLR 642, the Tribunal was, nevertheless, entitled to take the conduct into account in reaching its credibility conclusions.
In my view, that analysis, which is apparently the analysis followed by the Tribunal in this case, reflects a misunderstanding of the High Court’s decision. The High Court in SZJGV stated that the application of s.91R(3) requires three tasks. The first task is to identify the relevant conduct in Australia and to determine whether the conduct, in fact, occurred. The second task if the conduct, in fact, occurred is to determine the applicant’s motivation for that conduct. The third task, if the Tribunal determines that the sole motivation for that conduct was to strengthen his protection visa claims, is to determine whether the applicant was successful in achieving his or her objective[16].
In my view, it is only if the answer to the last question is “yes” that the Tribunal is required to disregard the conduct. In the present case, it is apparent from a fair reading of the Tribunal’s decision that the Tribunal did not consider that the applicant’s objective had been successful. On the contrary, the Tribunal stated that the applicant’s conduct in Australia supported the view that he was fabricating his claims. Accordingly, in my view, the Tribunal was not required to disregard the applicant’s conduct pursuant to s.91R(3). To that extent, the conduct was taken into account.
[16] See SZJGV at [64]
That approach to the interpretation of the section was disapproved by the Federal Court on appeal in SZOZT v Minister for Immigration [2011] FCA 1245. In that case at [36]-[43] Foster J said:
The correct interpretation of s 91R(3) has been authoritatively determined by the High Court in Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642. The Justices who were in the majority in that case were French CJ and Crennan, Kiefel and Bell JJ. There were, however, two joint judgments: That of the Chief Justice and Bell J and that of Crennan and Kiefel JJ.
In SZJGV, after discussing the legislative context in which the provision appears, French CJ and Bell J said (at [9] (pp 651–652)):
9.The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2). Neither that purpose nor Australia’s protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant’s credibility. Such a result would be irrational. A construction of s 91R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the text. If the language be so intractable that it requires a word or words to be given a meaning necessary to serve the evident purpose of the provision, then such a course may be permissible as a “realistic solution” to the difficulty. In the twelfth edition of Maxwell’sOn the Interpretation of Statutesthe approaches which can be taken in dealing with statutory language whose ordinary meaning is plainly at odds with the statutory purpose were explained:
“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.”
(Footnote omitted.)
...
At [12]–[13] (pp 653–654), their Honours said:
12.The proposition that s 91R(3) is concerned with the process of determination after the primary facts have been found does not meet the textual difficulty generated by the ordinary meaning of the word “whether”. However, the Solicitor-General’s submission does lead to consideration of an alternative construction, which is to read “whether” as “that”: not introducing alternatives, but indicating only processes of reasoning leading to a favourable determination. The usage is awkward and probably reflects a misuse of the term “whether” in para (a). But such misuse is not entirely without precedent. In this case, the substituted text corrects what would be an obvious drafting error were “whether” to be construed according to its ordinary and natural meaning. On the alternative construction, para (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in para (b) is satisfied with respect to the relevant conduct. We consider that to be the correct construction. It meets the purpose of the sub-section and avoids absurd results. Upon that construction the appeals must be allowed.
13.As to what is necessary to satisfy the condition in para (b), we agree with Crennan and Kiefel JJ that an applicant seeking to rely upon conduct engaged in in Australia must show that the conduct was not engaged in solely to strengthen his or her claim. By way of example, conduct in Australia may reflect a continued commitment by the applicant to religious practices followed or political opinions held and expressed in his or her country of origin. It could not be said to have been engaged in solely to strengthen the claim to be a refugee. It might then be relied upon by a decision-maker to infer prior commitment to a particular religious practice or political opinion in the country of origin.
Crennan and Kiefel JJ took a similar view.
At [54] (p 666), their Honours held that the only conduct to which s 91R(3) is directed is that which may be weighed in favour of acceptance of the claimant’s claims. At [58]–[65] (pp 667–669), their Honours set out their interpretation of the provision and their reasons for that interpretation. At [64] (p 669), their Honours said:
64.The approach of the Full Court was to regard sub-s (3) as engaged once the inquiry in para (b) was answered. This does not give sufficient weight to the underlying objective of sub-s (3). It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person’s claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account.
It appears that the first respondent made submissions before the Federal Magistrate which correctly captured the essence of the reasoning in SZJGV (see the Federal Magistrate’s Reasons at [15]). Those submissions were not accepted.
At [16] of his Reasons, the Federal Magistrate said that the High Court in SZJGV had stated that the correct application of s 91R(3) required three tasks to be undertaken. In support of that proposition, the Federal Magistrate referred to [64] of the judgment. I have extracted that paragraph at [39] above.
I do not think that the remarks of the Federal Magistrate made at [16] of his Reasons accurately summarise the reasoning of the Justices who comprised the majority in SZJGV. In particular, the introduction of the third task postulated by his Honour is apt to mislead. The High Court approached the matter upon the basis that s 91R(3)(a) hypothesises a chain of reasoning which ought not be applied unless the condition in s 91R(3)(b) is satisfied with respect to the relevant conduct. That reasoning does not involve considering whether the claimant was successful in his objective. The introduction of the third task by his Honour into his Honour’s analysis led to the somewhat confusing observations which he made at [17] of his Reasons.
In SZJGV, the majority held that, if the relevant conduct is to be used favourably to the claimant, condition (b) must be satisfied. On the other hand, if it is to be used adversely to the claimant as an integer undermining his or her credibility, the relevant conduct need not be disregarded for that purpose. That is to say, if the decision-maker comes to the conclusion that the conduct was engaged in for the sole purpose of strengthening his or her claim to be a refugee, that circumstance may be taken into account in assessing the claimant’s credibility.
The difficulty in the present case is that, because the Tribunal made no finding on whether the applicant’s conduct was engaged in for the sole purpose of strengthening his protection claims, it is not known whether the Tribunal was required to disregard that conduct. If the Tribunal was so required then the consideration of his asserted risk of harm by reason of that conduct would be not only unnecessary but in breach of the Tribunal’s obligation to disregard the conduct.
The Minister reads the Federal Court decision in SZOZT narrowly:
This statement is an accurate summary of the operation of s.91R(3). In particular, the Tribunal did not err in the manner identified by Foster J in SZOZT v Minister for Immigration [2011] FCA 1245 at [42] (‘SZOZT’). SZOZT stands for the narrow proposition that s. 91R(3) does not require the Tribunal to determine whether an applicant has been successful in achieving his/her objective of strengthening his/her claims. It does not stand for the proposition that the Tribunal cannot consider whether particular conduct in fact strengthens an Applicant’s claims. Such a question can clearly be relevant to the Tribunal’s enquiry: see Minister for Immigration v SZJGV (2009) 238 CLR 642 (‘SZJGV’) at [64] per Crennan and Kiefel JJ. Thus no error is demonstrated by the Tribunal’s statement to the effect that conduct need not be disregarded if it did not strengthen the Applicant’s claims.
I am bound to reject that submission by reference to the reasons of Foster J. His Honour made clear that the correct interpretation of the High Court’s decision in SZJGV is that a decision maker cannot embark upon the chain of reasoning hypothesised by s.91R(3)(a) unless the condition in s.91R(3)(b) is satisfied. The Tribunal erred in this case for precisely that reason.
The Minister submits that even if the Tribunal erred in its interpretation of the section, the Court should nevertheless withhold relief in the exercise of its discretion because the error could not have made any difference:
If the Tribunal’s decision is set aside the Applicant would be entitled to have his claims reconsidered de novo. This is a perverse outcome in the sense that the Applicant would be left in a better position than he would be if no error had occurred. To grant relief in circumstances where a technical legal error had no bearing on the Tribunal’s conclusion would be ‘a triumph of form of substance’: SZJSP v Minister for Immigration [2007] FCA 1925 at [28]-[29] per Madgwick J cited with approval in SZKGF v Minister for Immigration [2008] FCAFC 84 at [15].
At the hearing some argument was directed to the question of whether relief should be refused when there was a possibility that a differently constituted Tribunal reconsidering the Applicant’s claims might reach a different conclusion. The Applicant’s submissions suggest that it is relevant to consider the manner in which a differently constituted Tribunal might consider the Applicant’s claims upon remittal: Applicant’s supplementary submissions at [7]. However, for the reasons outlined in the previous paragraph, in considering the exercise of its discretion it is not necessary for the Court to ‘look forward’ into the future by determining whether the claims might be considered differently if remitted: see Kabir v Minister for Immigration [2010] FCA 1164 at [44]-[53] per Siopis J.
I agree. The Tribunal found that the applicant did not face a real risk of harm in China because of his Mormon faith. The error made by the Tribunal assisted the applicant insofar as his claim was considered but the claim was rejected. The result could not have been any different if the Tribunal had disregarded his conduct.
In my view, the Tribunal erred in not determining whether it was required to disregard the applicant’s conduct in Australia (that being his baptism and religious practice as a Mormon) prior to considering whether the applicant would face a real risk of harm in China. That error was a jurisdictional error, having regard to the mandatory terms in which s.91R(3) is framed. The Court should nevertheless withhold relief in the exercise of discretion because the outcome would have been the same if the Tribunal had applied the section correctly and if it had disregarded that conduct.
I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 26 March 2013
5
10
1