SZTKN v Minister for Immigration - [2014] FCCA 2213

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKN v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2213

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – alleged failure to consider claim – alleged breach of s.424A – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Minister for Immigration and Ethnic Affairs v Wu ShanLiang [1996] HCA 6; (1996) 185 CLR 259
Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000)
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2005] FCAFC 263; (2005) 144 FCR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
SZOYH v Minister for Immigration & Citizenship [2012] FCA 713
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) ALR 162
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471

Applicant:

SZTKN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2535 of 2013

Judgment of:

Judge Nicholls

Hearing date:

30 April 2014

Date of Last Submission:

30 April 2014

Delivered at:

Sydney

Delivered on:

26 September 2014

REPRESENTATION

Applicant:

In Person

Appearing for the Respondents:

Mr R Baird

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 17 October 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2535 of 2013

SZTKN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 October 2013 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 September 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

The applicant is a citizen of the People’s Republic of China (“China”) and arrived in Australia as a visitor on 9 September 2012 (“Court Book” – “CB” ‑ CB 2 to CB 3). She applied for a protection visa on 11 September 2012 (CB 1 to CB 36). Her husband, who is not an applicant before the Court, also applied at that time as a member of her family unit. The applicant was assisted in her application by a registered migration agent (CB 34 to CB 36).
Through her agent, the applicant provided a statement of her claims to protection on 9 January 2013 (CB 69 to CB 80). In essence, the applicant claimed that she was a Falun Gong practitioner in China and was “prosecuted” (persecuted) by the Chinese government (CB 7 and CB 70). She claimed that she had been “jailed” or placed in a “detention centre” on three occasions, namely in 2001, 2010 and 2011.
The delegate refused the application for a protection visa on 4 February 2013 (CB 81). The applicant had not attended a scheduled interview with the delegate (CB 101.2). The delegate, therefore, proceeded on the information that had been provided by the applicant in her protection visa application and statement. The delegate found that on the information before him, he was not satisfied that the applicant “had any involvement with Falun Gong” at least since 2001, or had been detained for any practice of it (CB 102.7).

The Tribunal

The applicant applied for review to the Tribunal on 11 March 2013 (CB 108 to CB 113). She was assisted by the same registered migration agent (CB 110). The applicant attended a hearing before the Tribunal on 12 September 2013 (CB 122).
On 13 September 2013, the Tribunal affirmed the decision of the delegate to refuse a protection visa to the applicant. The Tribunal had a number of concerns regarding the applicant’s credibility.
First, that the applicant’s “view of her predicament” following her release in 2010, as told to the Tribunal, was inconsistent with statements she had made in her “statement of claim”. The Tribunal found that she could not “provide an adequate explanation for this discrepancy” ([31] at CB 139).
Second, at the Tribunal hearing the applicant claimed that the police “had come looking for her” after she had left China ([32] at CB 139). However, this was not included in her statement of claim ([33] at CB 139). The applicant claimed that “…probably the representative did not include it” ([35] at CB 139). However, the Tribunal found that it was not credible that such “important information would be omitted from a long and detailed statement” that was lodged after her application for the visa, and only a few months after she claimed that she had been told of police attendance at her home ([37] at CB 140).
Third, the Tribunal did not find the applicant’s claims to have “taken the risk” in practising Falun Gong in her workplace in 2001 as credible when considered with the applicant’s other evidence about her practice ([44] at CB 141).
Fourth, the Tribunal found that in the applicant’s responses to questions regarding the practice of Falun Gong she did not “mention the important tenet” (the Falun or “law wheel” installed in the abdomen of a practitioner, see [48] at CB 141) and her answers were “unconvincing, general and vague” ([51] – [52] at CB 142).
The Tribunal concluded that, as a result of these concerns, she was not a “witness of truth” and that her claims were “false” ([53] at CB 142). Therefore, it found that she did not have a well-founded fear of persecution. Further, following its findings on credibility, that there were no “substantial grounds for believing” that the applicant would suffer significant harm (s.36(2)(aa) of the Act) ([64] at CB 143).

Application Before the Court

The application made on 17 October 2013 is in the following terms:
“1. The Refugee Review Tribunal failed to deal with an indice of the Applicant’s claim.
2. The Applicant claimed to have practiced Falun Gong in Australia since her arrival in Australia, which gave rise to a potential sur place claim.
3. The Tribunal failed to consider my application according to S424A of the Migration Act.”

Before the Court

At the first Court date in this matter on 11 December 2013, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. The applicant expressed her dissatisfaction with the review. That is, with the Tribunal’s decision. I explained to the applicant that the Court could not grant her a protection visa and that the Court could only consider whether the Tribunal had made a “legal mistake”. The orders made at that time gave the applicant the opportunity to file any amended application. The matter was set down for mention on 19 March 2014. Nothing further has been filed.
On that date the applicant again appeared in person and was assisted by an interpreter in the Mandarin language. The applicant repeated her complaint that the Tribunal’s decision was “not fair”. She stated that since the last Court date she had asked a “friend” to “write something” for her. She could not explain why this had not been “submitted”, or, in context, why this document had not been filed in these proceedings. Further, she stated that she felt that the Tribunal’s decision had been “unfair” and she “hoped” this friend would “find some documents” to assist her.
As best as could be understood, the applicant said that the “friend’s” name was “Mr Lee”, but did not know his first name or his business or residential address. She was unable to say what “documents” “Mr Lee” could assist her with. She did say that “Mr Lee” was not a lawyer.
Despite the unsatisfactory nature of this I gave the applicant further time to contact “Mr Lee” to see what “further documents” could be submitted in her case, and made orders to allow her to file any evidence by way of affidavit, and a further opportunity to file any amended application. The matter was set down for final hearing on 30 April 2014.

The Applicant’s Complaints Before the Court

At the hearing the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Mr R Baird appeared for the first respondent.
The applicant stated that there was no further documentation that she could provide to the Court. The only submission she made was that “the position is not fair”. It was subsequently clarified that what was not “fair” was said to be the Tribunal’s disbelief of her claims to protection, including her claimed Falun Gong belief.
By this complaint, therefore, the applicant seeks to cavil with the Tribunal’s adverse credibility finding, and its findings rejecting the factual basis for her claims, and her claimed Falun Gong beliefs and practice. The applicant, therefore, seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu ShanLiang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). The Tribunal’s findings, including those on credibility, were reasonably open to it on what was before it (Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405). The Tribunal gave reasons for its findings. The findings were within the proper exercise of the Tribunal’s jurisdiction. As such, the applicant’s complaint before the Court does not reveal jurisdictional error on the part of the Tribunal.

Consideration of the Grounds of the Application

Ground one asserts that the Tribunal failed to deal with an integer of her claims. If such a failure was apparent then this could give rise to jurisdictional error (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2005] FCAFC 263; (2005) 144 FCR 1,
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and SZOYH v Minister for Immigration & Citizenship [2012] FCA 713).
The applicant’s claims, as they were ultimately put before the Tribunal, were contained in her protection visa application (CB 1 to CB 38), a written statement (received by the delegate on 9 January 2013, see CB 69 to CB 74 for the English translation), and in her evidence to the Tribunal (see various parts of the Tribunal’s decision record for what is reported, CB 137 to CB 138, and in parts of the subsequent “Findings”, CB 138 to CB 141).
The application to the Court gives no particularity to this ground. The applicant was unable to explain it further before the Court. There is nothing in the material before the Court to show that the Tribunal failed to consider any aspect of the applicant’s claim.
The claim, as set out above, was essentially a fear of harm arising from her claimed Falun Gong practice. The applicant advanced certain incidents that she said had occurred in China in support of her fear.
On what is before the Court, the Tribunal dealt with the applicant’s claim to be a Falun Gong practitioner. It concluded that she was not a witness of truth. In this light, it rejected the factual basis for this claimed fear. No legal error is revealed in these circumstances. Ground one is not made out.
Ground two asserts that the applicant claimed to have practiced Falun Gong in Australia after her arrival and that this gave rise to a “potential sur place” claim.
The difficulty for the applicant is that the only relevant evidence available to the Court contradicts this factual assertion. In its decision record the Tribunal noted ([25] at CB 138):
“The applicant has not practised Falun Gong since her arrest in August 2010. Her son told her that if her health was getting better she did not need to do it (the applicant’s work in glass factories causing her ill-health and the applicant having ceased that work).”
Nor is there any reference in the material before the Tribunal to the applicant having practiced Falun Gong in Australia. Indeed the delegate reports that the applicant provided no information that she practised Falun Gong in Australia or participated in any Falun Gong activities (CB 102).
The applicant provided no written submissions or documentary evidence to the Tribunal. There is nothing in the report of her oral evidence to the Tribunal to say that she claimed to have practiced Falun Gong in Australia.
Despite opportunity, the applicant has not filed any amended application to expand or particularise her complaint. Nor has she filed any transcript of the Tribunal hearing. As it stands, there is no evidence to support what is asserted in the ground. On this basis, no jurisdictional error is revealed.
Ground three asserts a breach of s.424A of the Act. Again, no particulars are provided. I note the terms of s.424A of the Act, relevant to what is set out below, are as follows:
“424A Information and invitation given in writing by Tribunal
(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
…
(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.”
A failure to properly comply with s.424A of the Act is jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) ALR 162). The meaning of the term “information” was explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”).
In SZBYR, the High Court emphasised the “temporal effect” of s.424A of the Act as being focused on a time anterior to the publication of the Tribunal’s decision (“the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review” ‑ SZBYR at [12] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, see also at [13]). That is, that what is “information” for the purposes of s.424A of the Act is that information which the Tribunal considered “would be” the reason or a part of the reason for affirming the delegate’s decision.
However, in this context, the Tribunal’s decision record may still assist in informing what the Tribunal considered at some anterior time to the publication of the decision record would be the reason or part of the reason, for affirming the decision that is under review (SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [20] per Jacobson J, and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J).
The Tribunal’s decision turned on its comprehensive rejection of the applicant’s factual account of claimed events in China and her lack of basic knowledge of Falun Gong tenets. It found she was not a witness of truth and that the factual account on which her protection claims were based was false. This, and the findings underpinning this conclusion, were all reasonably open to the Tribunal on what was before it. It gave reasons probative of the material before it.
The information that the Tribunal relied on all came within the exemptions contained in s.424A(3) of the Act to the obligation in s.424A(1) of the Act (however, see [37] further below and following). The Tribunal relied on the applicant’s written material provided in support of her application for the visa (s.424A(3)(ba) of the Act), noting that the applicant did not attend an interview with the delegate, on what she gave to the Tribunal in writing and orally at the hearing (s.424A(3)(b) of the Act), and on information (accessed through various websites) that fell within s.424A(3)(a) of the Act.
The Tribunal’s adverse views of the applicant’s evidence was not “information” for the purposes of s.424A(1) of the Act

(SZBYR at [17] – [18]).
In an abundance of caution, I note that in its decision record the Tribunal made reference to the application made by the applicant for the visitor’s visa by which she travelled to, and entered into Australia. To understand the matter below, regard must be had to the following from the Tribunal’s decision record ([56] – [60] at CB 142):
“[56] The Tribunal had access to the department file relating to the applications made by the applicant and her husband for visitor visas which they used to travel to Australia. The applications contain evidence about the applicant's employment which is inconsistent with the claims she has made about that to the Tribunal.
[57] However, for the purposes of determining this review application, the Tribunal is willing to accept her claim that she knew nothing about the information put forward in the visitor visa application and therefore that the information put forward in that application was false.
[58] Accordingly, the Tribunal does not regard that information as adverse to the applicant's credibility. The Tribunal has set out above its reasons for finding that the applicant is not a witness of truth. The fact that false information was put forward in relation to a visitor visa application does not demonstrate that the applicant left China for the reasons she has given to the Tribunal.
[59] There is no credible evidence as to why the applicant and her husband left China and why they do not wish to return there. The Tribunal accepts as credible no more than that the applicant and her husband come from China where their son lives.
[60] The Tribunal accepts as credible that the applicant worked in glass factories in China but there is no credible evidence as to the status of that employment (the Tribunal disbelieving her claims that she lost employment because she was arrested by Chinese authorities).”
The question that arises is whether it can be said there is “information” here that the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision such that s.424A(1) of the Act was engaged. The reference to the applicant’s visitor visa application, which was not given to the Tribunal by the applicant for the purposes of the application for the protection visa or the application for review, is of note.
As referred to above, the applicant was unable to assist the Court in explaining the relevance of this, or its connection to ground three. The Minister’s position was that s.424A(1) of the Act was not engaged because there is “no reason to infer that the Tribunal ‘considered’ [with reference to s.424A(1) of the Act] any of that material to have the adverse character necessary to engage s.424A” of the Act ([23] of the Minister’s written submissions).
In essence, I understood the Minister’s position to be that the engagement of s.424A(1) of the Act requires an evidentiary basis from which it can, at least, be inferred that the Tribunal considered information that would be the reason, or a part of the reason, for affirming the decision under review (with reference to s.424A(1), SZBYR at [18] and SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 (“SZKLG”) at [33]).

As was made clear in SZBYR and SZKLG (“must consider the question in advance of its decision” at [33] in SZKLG), the relevant temporal focus in s.424A(1) of the Act (“would be”) requires the Tribunal to consider the question in advance of its decision, considering the information upon which it would rely, should it decide to affirm the relevant decision.
Two matters are of immediate note. First, the applicant herself has not provided, or pointed to, any evidence to support any claim that the Tribunal had considered any “information” which would be the reason or a part of the reason for affirming the delegate’s decision.
Second, as set out above, while the temporal focus is on a time antecedent to the making of the decision, as stated above, the decision record can assist in addressing the question of whether there was information in this case caught by the obligation in s.424A(1) of the Act.
This immediately directs attention to [58] (at CB 142) of the Tribunal’s decision record, and the context in which it appears (see above at [37]). The Tribunal here makes reference to the applicant’s visitor visa application, and to certain contents of that application. In the absence of any other relevant evidence, the question as to whether this may reveal that the Tribunal considered that application, and the information in it, to be part of the reason for affirming the delegate’s decision, is focused on the Tribunal’s relevant reasoning in its decision record.
A preliminary point is that on its face, as set out above, this information does not appear to fall within any of the exceptions set out at s.424A(1) of the Act.
Drawing on the reasoning in SZKLG, which the Minister submitted was drawn from circumstances similar to the current case, the Minister submitted that while on one view this material might be said to have undermined the applicant’s position and therefore, in that sense, engaged s.424A(1) of the Act, the Minister also submitted that the Tribunal may have viewed the material as supporting of the applicant’s claims. In this light, the Minister submitted that the Tribunal viewed the material as neutral, falling within the principle outlined in SZKLG (at [33]).
At first glance the Tribunal’s reference in that third sentence at [58] (at CB 142) to “false information” submitted in the visitor visa application and the reference to the applicant’s reasons for leaving China provide some basis for closer examination.
It is the case, as is often said, that Tribunal decisions are over zealously read with “an eye attuned for error” (Wu Shan Liang at [30] ‑ [31]). Tribunal decisions should be read fairly, that is, holistically and understood in context.
Here the Tribunal’s reasoning, on a fair reading, is in my view, as follows. The visitor visa application, made by the applicant and her husband, contained “evidence about the applicant’s employment” which was “inconsistent” with the applicant’s claims before the Tribunal ([56] at CB 142). Noting, of course, that any inconsistency itself is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18] and the reference there to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471).
The Tribunal accepted the applicant’s claim that she did not know of the contents of the visitor visa application and, therefore, did not know that the information put forward in that application “was false” ([57] at CB 142).
In that light, the Tribunal expressly stated that it did not “regard”, in the sense of “consider”, that that information was “adverse to the applicant’s credibility” ([58] at CB 142).
The Tribunal made plain in the second sentence of [58] (at CB 142), that its finding that the applicant was not “a witness of truth” derived from matters extensively set out earlier in its decision record (see [27] at CB 138 to [57] at CB 142).
The Tribunal rejected the factual basis for the applicant’s claimed fear as a result of that finding, based in turn, on a large number of matters which contained no reference to the visitor visa application, or its contents ([53] – [54] at CB 142).
In these circumstances, it cannot be said that there is evidence before the Court, at least with reference to the decision, up to that point of the Tribunal’s reasoning, that provides the basis to draw an inference that the Tribunal considered that the information in the visitor visa application was a part of the reason for finding adversely to the applicant’s credit. That is, rejecting the applicant’s factual account which was at the heart of its reasons for affirming the delegate’s decision.
The third sentence at [58] (at CB 142), therefore, when read in light of what precedes it, can be fairly read as answering the question the Tribunal posed for itself at [57] (at CB 142).
That question was directed to the import, or otherwise, of the “false” information in the visitor visa application. Namely, did the “false” information assist or support the applicant’s case. In that regard, the Tribunal answered that question at the third sentence of [58]

(at CB 142), and must read with what follows at [59] (at CB 142). This was the Tribunal’s consideration of whether the “false” information provides some positive support for the applicant’s case. That is, at this part of its analysis the Tribunal was considering whether the information in the visitor visa application could assist, not refute, the applicant’s case.
In short, that consideration resulted in the Tribunal’s finding that the “false” information did not support the applicant’s claimed reasons for leaving China. Importantly, those claimed reasons were rejected on bases not connected with the information in the visitor visa application. I agree with the Minister that, at best, the information was seen to have a “neutral” character in the Tribunal’s analysis.
In that sense the Tribunal’s finding was that the information was not relevant to its rejection of the applicant’s claims. That rejection was explained, in detail, earlier in its analysis. In this light, it cannot be said that the Tribunal considered the “false” information to be a reason, or a part of the reason, for affirming the delegate’s decision.

Conclusion

In all, the applicant’s grounds and what she put to the Court does not reveal jurisdictional error on the part of the Tribunal’s decision. Nor can I otherwise see any jurisdictional error on the part of the Tribunal. The application should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 26 September 2014