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Federal Court of Australia - Full Court |
Last Updated: 3 June 2009
FEDERAL COURT OF AUSTRALIA
SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65
MIGRATION – Refugee Review
Tribunal telephoned a person to obtain information about appellant –
whether such information was additional
information under s 424(2) of the
Migration Act 1958 (Cth) – whether jurisdictional
error
MIGRATION – determination of whether well-founded fear
of being persecuted – whether failure to disregard conduct in Australia
where
Minister not satisfied that conduct not engaged in otherwise than for
purpose of strengthening refugee claim under s 91R(3) of the Migration Act
1958 (Cth)
Migration Act 1958 (Cth) ss 91R(3), 422B, 423,
424(1), 424(2), 424(3), 424A, 424B, 429A, 441A(1), 441A(2), 441A(3), 441A(4),
441A(5)
Federal Court Rules O 80, r 4
SZKTI v Minister for Immigration and
Citizenship [2008] FCAFC 83; (2008) 168 FCR 256
SZLPO v Minister for Immigration and
Citizenship [2009] FCAFC 51
SZMBS
v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ANOR
NSD 1143 of
2008
EMMETT, BENNETT & MIDDLETON JJ
3
JUNE 2009
SYDNEY
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AND:
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THE COURT ORDERS THAT:
2. The Appellant pay the First Respondent’s costs of the
appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZMBS
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGES:
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EMMETT, BENNETT & MIDDLETON JJ
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DATE:
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3 JUNE 2009
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
THE COURT:
1 This appeal principally involves the question of whether the second respondent, the Refugee Review Tribunal (the Tribunal), committed jurisdictional error in dealing with a review of a decision of the first respondent, the Minister for Immigration and Citizenship (the Minister), by making a telephone call and conducting a conversation with the pastor of a church of which the appellant claimed to be a member. The telephone call was made in the course of a hearing afforded by the Tribunal to the appellant to enable her to give evidence and make submissions as to why the Tribunal should be satisfied that she is entitled to the grant of a protection visa under the Migration Act 1958 (Cth) (the Act). Section 424(3) of the Act provides that, if a person is to be invited to give additional information to the Tribunal, the person must be invited to do so by a specified method. The Tribunal did not comply with the requirements of s 424(3) and the question is whether the action of the Tribunal constituted inviting the pastor to give additional information to the Tribunal.
2 The appellant, who is a citizen of the Peoples Republic of China (China), arrived in Australia on a visitor visa on 9 August 2007. On 21 September 2007, she applied to the Minister for a Protection (Class XA) visa, on the basis that she has a well founded fear of being persecuted for reasons of religion if she returns to China. On 7 December 2007, a delegate of the Minister decided to refuse to grant a visa to the appellant and the appellant then applied to the Tribunal for review of the delegate’s decision, pursuant to Part 7 of the Act.
3 On 8 February 2008, the Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa to the appellant. The Tribunal found that there was no real chance that the appellant would suffer persecution if she returned to China and that Australia therefore does not have obligations to her under the Refugees Convention of 1951 as amended by the Protocol of 1967.
4 The appellant then commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision on the basis that the decision was attended with jurisdictional error and should therefore be set aside. On 4 July 2008, after a hearing on 23 June 2008, at which the appellant appeared without legal representation, the Federal Magistrates Court concluded that the Tribunal’s decision was a privative clause decision within s 474 of the Act. Accordingly, the Federal Magistrates Court ordered that the proceeding be dismissed with costs.
THE TRIBUNAL’S REVIEW OF THE MINISTER’S DECISION
5 In a statutory declaration provided to the Minister in support of her application for a protection visa, the appellant had claimed that, in early 2006, her husband suffered from a serious illness as a result of which she suffered from "huge pressure" and decided to commit suicide. She claimed that she was saved by a woman who was a pious Christian and a member of the church that is known as the Local Church or the Shouters Church. In June 2006, the woman took the appellant to attend a religious gathering at the woman’s home. The appellant claimed to have been deeply moved and felt genuine love and real care for the first time in her life. Thereafter, the appellant insisted on attending the religious gatherings organised by the woman, despite strong objections from her mother-in-law. The appellant also persuaded her husband to attend the gatherings with her. The appellant said that the woman arranged for the appellant’s husband to see a doctor, who was also a pious Christian, who practises traditional Chinese medicine and her husband completely recovered from his illness. The appellant claimed that, thereafter, she and her husband were baptised in the woman’s home and have both become genuine Christians.
6 The appellant claimed that, in April 2007, she went to the woman’s home to attend a gathering and unexpectedly found many police there. She claimed that she and the woman and seven other Christians attending the meeting were arrested by the police. She also claimed that she was detained for about one month and subjected to interrogation by the police many times. She claimed that the woman and the other seven Christians were sent to a labour camp. The appellant claimed further that, following her release from detention, the police gave her trouble by investigating her alleged anti-government religious activities. She claimed that she subsequently left China with the help of her husband and other Christians and that, since her departure, her husband and her mother-in-law have been in trouble with the police because the police believe that they assisted the appellant to escape from China.
7 The appellant asserted that she is able to practise her religion freely and safely in Australia but that, if she returns to China, she would be subjected to persecution because of her religious belief. She claimed, therefore, that Australia has protection obligations to her under the Refugees Convention.
8 When she lodged her application to the Tribunal for review of the decision of the Minister’s delegate, the appellant provided no additional claims beyond what was contained in the statutory declaration provided to the Minister. On 17 January 2008, the Tribunal wrote to her saying that it was unable to make a favourable decision on the material available to it. The letter invited the appellant to appear before the Tribunal on 6 February 2008 to give oral evidence and present arguments. On the same day, the Tribunal wrote a second letter to the appellant inviting her to comment on information that the Tribunal considered may be the reason or part of the reason for affirming the decision of the Minister’s delegate.
9 The appellant responded to the Tribunal’s letters on 31 January 2008. She provided a further statutory declaration and said that she wished to attend the hearing on 6 February 2008. The appellant indicated that she did not want the Tribunal to take oral evidence from any witness. However, immediately prior to the hearing on 6 February 2008, the appellant provided to the Tribunal a letter dated 3 February 2008 from the Local Church in Sydney. The letter, which was signed by Brother William Poh and Brother David Chen, was addressed "TO WHOM IT MAY CONCERNED" [sic] and said:
This is to confirm that [the appellant] has been meeting regularly with the church since August 2007.Please do not hesitate to contact William Poh ([mobile telephone number]) should you have any further enquiry.
10 In the course of the hearing on 6 February 2008, the Tribunal asked the appellant how often she had been attending the Local Church in Australia. She said that she normally attended once a week and did not go more often because her boss insisted she should do the cleaning work. The Tribunal asked the appellant how it was that she was able to find the Local Church in Australia almost immediately after she came to Australia but took more than a month to apply for a protection visa. The Tribunal considered that the appellant’s response to that question did not constitute an explanation and told her so.
11 The Tribunal then asked the appellant about services at the Local Church and about what kind of Bibles were used. The following exchange then took place:
Q Have you mentioned to these people in the Church to Brother Poh that you have applied for the protection visa?
A I got a certificate.
Q Have you mentioned to Brother Poh that you have applied for the protection visa?
A Yes I told him.
Q So if I call him and mention that I am calling from the Tribunal will he know what I am talking about? He might be able to give us some information.
A Yes, yes please.
Q Do you mind if I call him?
A Yes.
Q I will have to mention that I am calling from the Refugee Review Tribunal.
A Yes. God knows everything.
Q Does Brother Poh speak English?
A I don’t know. I don’t know. Can you try?
[call made to William Poh]
Q Good morning is that William Poh?
A Yes. Speaking.
Q ...I’m calling from the Refugee Review Tribunal in Sydney.
A Yes. Yes. How are you?
...
Q You have written a statement for [the appellant] recently and I want to ask you a few questions.
...
Q Yes. Do you mind is [sic] I ask you a few questions?
A Sure.
Q You are now on the speakerphone and [the appellant] is also present and I will just get the interpreter to interpret what is being said to her. Can you bear with me for a moment?
A Yes.
Q Can you please tell me when [the appellant] started attending the Local Church?
A Yes, Local Church. Last Year.
Q Do you remember when last year?
A I couldn’t remember. Maybe August last year.
12 According to the Tribunal’s reasons, Brother Poh told the Tribunal that the appellant started attending the Local Church in August 2007 and that she had been attending once a week on Sundays. He also said that there may have been house meetings in Auburn but that the appellant had not been attending those very often. He said that he spoke to the appellant about three weeks previously about a particular topic and that the appellant had attended a video training. Brother Poh said that he told the appellant that she had to have "pure intentions" and not make use of the Church for personal gain. He also said that many people attend the Church and ask for a letter such as the one that he provided for the Tribunal.
13 Brother Poh also stated that he could not say what happened to the appellant in China, as he did not know. He said that he was aware, from other brothers, that there were many problems in the relevant part of China but he could not say what happened to the appellant. The Tribunal asked Brother Poh whether he felt that the appellant was familiar with the Local Church and with its Christian principles. Brother Poh said that it was not the first time he had written a letter saying that a person attended the Church. He said that people continued to attend after they get permanent visas but not all remained. The Tribunal asked Brother Poh whether he felt that the appellant had any exposure to the Local Church or Christianity in China. Brother Poh replied that there is a lot of suffering in China but that he could not state whether the appellant had any exposure to the Local Church in China.
14 According to the Tribunal’s reasons, the Tribunal then told the appellant that it had to consider whether she had been attending the Local Church and had engaged in religious activities in Australia for the purpose of strengthening her claim to be a refugee. The appellant replied that she was not attending the Church for the purpose of her application and that she wanted to go to the Church because, in China, she had no religious freedom such as she has in Australia. The Tribunal told the appellant that, unless it was satisfied that she engaged in the conduct of attending church in Australia otherwise than for the purpose of strengthening her claim to be a refugee, the Tribunal must disregard her conduct in Australia. The appellant responded that she did not know what would have happened to her family if there was no God to help her.
15 The Tribunal found that the appellant was not a credible witness. It considered that she was often non-responsive and vague in her answers and appeared to have memorised her statement and repeatedly provided information from her statement, irrespective of the questions posed by the Tribunal.
16 The Tribunal expressed specific concerns about the appellant’s credibility as follows:
• The Tribunal asked the appellant how her son, when he applied for a student visa, was able to provide evidence of funds, given the nature of the appellant’s family’s past employment. The appellant said that she borrowed money from other people and that the Church people also helped. The Tribunal pointed out that, in her letter to the Tribunal of 31 January 2008, she had not provided that response in answer to the same question, which had been put to her in the Tribunal’s letter of 17 January 2008. The appellant told the Tribunal that the Local Church had helped with her son’s student visa application. The Tribunal pointed out that, in her declaration of 31 January 2008, the appellant had provided information that was different from the information that she was then providing to the Tribunal. She then said that the information provided in her application about her job and other things was incorrect. In answer to the Tribunal’s question as to why the Local Church would provide false information to help her to apply for a visitor visa and help her son apply for a student visa, she said that the Church wanted to help her. The appellant subsequently said that she had borrowed money on interest in connection with any application that her son might make for extension of his student visa. When asked how the appellant planned to repay the money, given her employment, she said that Australia is a good country and she and her son could earn enough money. The Tribunal found that the appellant had not been truthful in her evidence regarding the source of funds and that she had deliberately misled the Tribunal. The Tribunal was of the view that the appellant may have borrowed some or all of the funds relating to her visitor visa application and her son’s student visa application and that her primary motivation in coming to Australia was to repay the debt.
• The Tribunal asked the appellant to describe the gatherings that she claimed to have attended at the Local Church in China, but the appellant was unable to do so. The Tribunal was of the view that, if the appellant had attended gatherings of the Local Church as she claimed, she would have been able to describe the gatherings in considerably more detail than she did.
• The appellant was unable to state the manner in which prayers are said at the Local Church or the special way in which they are said, which the Tribunal considered was a distinguishing feature of the Local Church. The appellant was unable to explain any of the distinctions between the Local Church and mainstream Christianity and was unaware of the reason why the Church is also called the Shouters Church. Those matters caused the Tribunal to question the appellant’s claim that she had attended gatherings of the Local Church. The Tribunal considered that, if she did, the special way in which prayers are said would have been apparent to her and she would have been cognisant of at least some of the unique features of the Local Church.
• The appellant stated that she learned the Bible while attending gatherings of the Local Church. When asked to describe what she learned, the appellant said that she was illiterate. The Tribunal was of the view that, if the appellant attended the gatherings of the Local Church daily for a period exceeding six months, as she claimed, she would have a significantly greater level of knowledge of the Bible, despite her illiteracy.
Having regard to those matters, the Tribunal found that the appellant had been untruthful in her evidence and her description of events in China and rejected her evidence.
17 The Tribunal rejected the appellant’s claims that she had been involved with the Local Church in China, that she regularly attended the gatherings of the Local Church in China, that she associated with others at the Local Church in China and that she introduced the Local Church to others or otherwise assisted in spreading the Christian Gospel in China. The Tribunal therefore rejected the appellant’s claim that she departed China in order to avoid persecution.
18 The Tribunal then observed that it made those findings while acknowledging that the appellant started attending the Local Church in Sydney shortly after her arrival in Australia. The Tribunal then considered the appellant’s conduct in Australia. The Tribunal said that, on the basis of the letter of 3 February 2008, the appellant’s oral evidence and the telephone conversation that took place between the Tribunal and Brother Poh, it accepted that the appellant had been attending the Local Church in Sydney since August 2007.
19 However, given the Tribunal’s findings about the appellant’s lack of religious involvement in China, the Tribunal was of the view that any religious knowledge that the appellant displayed in oral evidence was acquired as a result of her attendance in Australia. In light of the Tribunal’s findings about the appellant’s lack of religious involvement in China and the appellant’s lack of overall credibility, as well as the Tribunal’s concerns about the appellant’s motivation in entering Australia, the Tribunal was not satisfied that the appellant had engaged in religious activities in Australia otherwise than for the purpose of strengthening her claims to be a refugee. The Tribunal said that it disregarded such conduct, in accordance with s 91R(3) of the Act.
DECISION OF THE FEDERAL MAGISTRATES COURT
20 The grounds advanced to the Federal Magistrates Court by the appellant in her application for judicial review were as follows:
(1) The Tribunal made its finding made incorrect information; and my evidence has significantly been misstated by the Tribunal; and the Tribunal incorrectly assess my credibility; and the Tribunal’s decision had included a reasonable apprehension of bias.
(2) The Tribunal’s finding has included reasonable apprehension of bias.
(3) The Tribunal failed to comply with its obligation under s 424A(1) of the Act.
The primary judge recorded that the appellant did not comply with a direction made by consent for the filing of written submissions. His Honour also observed that the appellant was emotionally upset at the hearing conducted on 23 June 2008 and had difficulty making oral submissions.
21 The primary judge dealt at some length with the three grounds outlined above and rejected each of them. His Honour considered that there was no evidentiary support for the assertion of a reasonable apprehension of bias. The only information that the Tribunal was said to have failed to canvas with the appellant was the Tribunal’s alleged misconstruction of the appellant’s evidence.
22 Having regard to the fact that the appellant was not represented by a legal adviser, the Minister raised for consideration by the Federal Magistrates Court a possible further ground, namely, whether the Tribunal had power to obtain information from Brother Poh in the manner described above. In dealing with that ground, the primary judge drew an inference, from the Tribunal’s reference to taking "evidence" from Brother Poh, that, notwithstanding that the Tribunal spoke to Brother Poh by telephone, a formal procedure was followed and that the Tribunal had administered an oath or affirmation. His Honour concluded, therefore that there had been no failure to comply with any procedural requirements of the Act.
23 At the hearing of the appeal, the Full Court received as additional evidence, without objection from the Minister, a transcript of part of the hearing before the Tribunal, which was not available to the Federal Magistrates Court. The substance of the transcript is set out above. That transcript indicates that the inference drawn by the primary judge was wrong and that no formal procedure had been followed in relation to the telephone call to Brother Poh. In view of the approach taken on the appeal, nothing now turns on whether the Tribunal administered an oath or affirmation.
THE APPEAL
24 Following the appointment, pursuant to Order 80 of the Federal Court Rules, of counsel to appear for the appellant pro bono publico, an amended notice of appeal was filed. In essence, the grounds of appeal that were pressed on the hearing of the appeal can be summarised as follows:
(1) The Federal Magistrates Court ought to have found that the Tribunal failed to comply with the requirements of s 424(3) of the Act and thereby committed jurisdictional error.
(2) The Federal Magistrates Court ought to have found that the Tribunal committed jurisdictional error, in that, in contravention of s 91R(3) of the Act, it failed to disregard conduct engaged in by the appellant in Australia, namely, attending the Local Church in Australia, in circumstances where the Tribunal was satisfied that the appellant had engaged in that conduct for the purpose of strengthening her claim to be a refugee.
Both grounds arise out of the action taken by the Tribunal to communicate with Brother Poh by telephone.
Failure to Comply with s 424(3)
25 Division 4 of Part 7 of the Act is concerned with the conduct by the Tribunal of a review of a decision of the Minister whether or not to grant a protection visa. Division 4 consists of ss 422B to 429A inclusive. Section 422B(1) provides that Division 4 is to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
26 Under s 423, an applicant for review may give to the Tribunal a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider and may give the Tribunal written arguments relating to the issues arising in relation to the decision under review. Section 424(1) authorises the Tribunal, in conducting the review, to get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
27 Section 424(2) provides that, without limiting s 424(1), the Tribunal may invite a person to give additional information. Under s 424(3)(a) the invitation must be given to the person by one of the methods specified in s 441A. Sections 424(2) and 424(3) are critical to the appellant’s contentions in relation to the first ground.
28 Section 441A is contained in Division 7A, which deals with the giving and receiving of review documents. Section 441A(1) relevantly provides that, for the purposes of the provisions of Part 7 that require the Tribunal to give a document to a person (the recipient) and state that the Tribunal must do so by one of the methods specified in s 441A, the methods are as set out in ss 441A(2), 441A(3), 441A(4) and 441A(5).
29 The methods set out in s 441A consist of a member of the Tribunal, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar of the Tribunal:
• handing the document to the recipient (s 441A(2));
• handing the document to another person who is at the last residential or business address provided to the Tribunal by the recipient in connection with the review (s 441A(3));
• dating the document and then despatching it by prepaid post or other prepaid means to the last address for service, or the last residential or business address, provided to the Tribunal by the recipient in connection with the review (s 441A(4));
• transmitting the document by electronic means to the last electronic address provided to the Tribunal by the recipient in connection with the review (s 441A(5)).
30 The appellant contends that, in making the telephone call to Brother Poh, the Tribunal was inviting Brother Poh to give additional information within the meaning of s 424(2). However, the Tribunal did not give Brother Poh an invitation to give additional information by one of the methods specified in s 441A. The appellant complains that the Tribunal thereby failed to comply with a specific procedural requirement of the Act. Accordingly, so the appellant contends, the Tribunal committed jurisdictional error. Thus, a critical step is the contention that, by making the telephone call to Brother Poh, the Tribunal was inviting him to give additional information. Before dealing with that contention, it is desirable to say something further about the way in which ss 424(2), 424(3) and 441A operate in the present context.
31 First, it appears that the Tribunal may invite a person to give additional information at any time during the course of a review, including, if the Tribunal so decides, during a hearing. Further, nothing in s 424(2) limits its operation to inviting the applicant. Thus, if the Tribunal invites a third person to give additional information, s 424(2) will be activated. When s 424(2) is activated, the invitation must be given by one of the methods specified in s 441A. Thus, s 424(3) appears to have the effect that the Tribunal may only invite a person to give additional information, within s 424(2), by means of an invitation that is a document. Further, where the person who is to be invited has not provided an address to the Tribunal in connection with the review, the invitation can be given to that person only by handing the document to the person.
32 Sections 424(2) and 424(3) signify a degree of formality, in contrast to the lack of formality contemplated by s 424(1). Thus, under s 424(1), the Tribunal is able to get additional information without inviting a person to give such additional information. That is the clear effect of s 424(1). The Tribunal can get such information without the formality of administrating an oath or affirmation, and without treating the information as evidence. Section 424(3), however, requires the handing or sending of a document to a person.
33 The requirement in s 424(3) that the Tribunal must invite a person to provide further information only by one of the methods specified in s 441A could be very inconvenient in circumstances where the person has not provided an address to the Tribunal in connection with the review. It would be unusual that a person, other than an applicant for review, would provide an address to the Tribunal in connection with a review. Thus, only s 441A(2) would have any application where the Tribunal proposes, for the purposes of s 424(2), to invite a person to give additional information. Even then, it could be very inconvenient for a member of the Tribunal, or the Registrar or an officer of the Tribunal, to hand a document to a person, except at the Tribunal’s premises.
34 The language of s 424(2) is subject to possible ambiguity. Section 424(2) refers to the Tribunal inviting the person to give additional information. A question arises as to whether that refers to information that is additional to information that the Tribunal has already obtained from any source, such as from the applicant or pursuant to s 424(1), or to information that is additional to information that the Tribunal has already obtained from the person to be invited. The possible inconvenience referred to above might suggest that s 424(2) is concerned with inviting a person who has already given information to the Tribunal to give additional information. In such a case, the person may well have provided an address to the Tribunal in connection with the review. Accordingly, the preferable view is that s 424(2) refers to information additional to information previously given to the Tribunal by the person to be invited (see SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 at [99]-[100]).
35 Whether s 424(2) was enlivened in the present case depends upon whether the making of the telephone call by the Tribunal to Brother Poh can fairly be characterised as the Tribunal inviting Brother Poh to give additional information within s 424(2). The considerations outlined above are of relevance in construing s 424(2) and, in particular, in determining what it means to invite a person to give information. That is to say, the question is whether the Tribunal invited Brother Poh to give information within s 424(2), by making the telephone call during the course of the hearing on 6 February 2008.
36 It is significant that the letter of 3 February 2008 from the Local Church is not addressed to the Tribunal and was not provided to the Tribunal by Brother Poh. Rather, it was given to the Tribunal by the appellant. Thus, as at the time when the Tribunal telephoned Brother Poh, Brother Poh had not given any information to the Tribunal concerning the appellant.
37 In making the telephone call to Brother Poh, the Tribunal was doing no more than taking up the invitation extended by the letter of 3 February 2009 to contact Brother Poh. The Tribunal was simply responding to the offer made by the letter. The appellant acquiesced in that response. The transcript quoted above indicates, if anything, that the appellant encouraged the Tribunal to make the telephone call to Brother Poh as suggested by the Tribunal. When the Tribunal accepted the invitation in the letter, addressed to the world at large, to contact Brother Poh if there was any further enquiry, the Tribunal may have been attempting to get information. However, the Tribunal was not inviting Brother Poh to give additional information within the meaning of s 424(2). At most the Tribunal was making an enquiry as to whether Brother Poh had relevant information to give to the Tribunal. It did not invite him to give information, much less additional information.
38 Section 424(2) was not enlivened. Accordingly, there was no failure on the part of the Tribunal to comply with s 424(3) of the Act.
39 Even if the Tribunal’s telephone call to Brother Poh could properly be characterised as inviting him to give additional information, it is impossible to see how the failure to do so by a method described in s 441A had any materiality in relation to the Tribunal’s decision. While only the transcript of the introductory part of the telephone call is in evidence, the reasons of the Tribunal make clear that Brother Poh provided no additional information to the Tribunal. Brother Poh did no more than corroborate the statement made by the appellant that the appellant had been attending meetings of the Local Church since August in the previous year. The Tribunal accepted the appellant’s statement to that effect. Brother Poh knew nothing about the appellant’s conduct in China. Any failure to comply with s 424(3) in the circumstances of this case did not involve any excess of jurisdiction or a failure to exercise jurisdiction on the part of the Tribunal such as would constitute jurisdictional error on the part of the Tribunal.
40 The appellant placed considerable store on the decision of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83; (2008) 168 FCR 256 (SZKTI’s Case). The circumstances of SZKTI’s Case are relevantly different from those presently under consideration. In SZKTI’s Case, some three months after a hearing, the Tribunal sent two letters to SZKTI. One of the letters referred to evidence that SZKTI had given at the hearing about his religious practice in China and his connection with the Local Church in Australia. The letter requested SZKTI to provide additional information, including statements from any persons who held official positions within the Church. In the letter, the Tribunal informed SZKTI that "it may verify any information you provide in response to this letter".
41 In response, SZKTI’s migration agent wrote to the Tribunal naming two elders of the Local Church, who had provided a letter that was enclosed. The migration agent’s letter asked the Tribunal to contact the elders should it have any questions about SZKTI’s religious activities in Sydney. Enclosed with the migration agent’s letter was a letter dated 5 February 2007 from the Local Church in Sydney in terms substantially identical to the letter of 3 February 2008, save for different names.
42 Some two months after receipt of the letter from the migration agent, the Tribunal telephoned the elder named in the letter of 5 February 2007. Some days later, the Tribunal wrote to SZKTI’s migration agent pursuant to s 424A saying that it had information that, subject to any comments that SZKTI might make, would be the reason, or part of the reason, for deciding that SZKTI was not entitled to a protection visa. The Tribunal’s letter explained why the information obtained in its telephone call was relevant to its decision.
43 The Full Court concluded in SZKTI’s Case that the Tribunal’s telephone conversation was part of the reason for its rejection of SZKTI’s claim for a protection visa. The Tribunal considered that the telephone call amounted to an invitation to the elder who was telephoned to give additional information to the Tribunal. The Full Court observed that the Tribunal’s reasons and the second letter, sent pursuant to s 424A, recited what it had obtained during the telephone conversation, showing that the elder provided information additional to that contained in the letter of 5 February 2007. The Tribunal held, therefore, that s 424(2) was engaged when the Tribunal decided to seek that information.
44 A significant distinction between SZKTI’s Case and the present case is that the letter of 3 February 2008 was provided by the appellant to the Tribunal of her own accord and without any prompting or request by the Tribunal for further information. The telephone call to Brother Poh was made in the course of the hearing in the presence of the appellant, with the appellant’s consent and with her encouragement. In those circumstances, assuming SZKTI’s Case is correctly decided, but without endorsing its correctness, SZKTI’s Case does not govern the outcome of the present case.
Failure to Comply with s 91R(3)
45 Section 91R is contained in Subdivision AL of Division 3 of Part 2 of the Act. Division 3 is concerned with visas for non-citizens and Subdivision AL, which consists of ss 91R to 91Y inclusive, contains provisions about protection visas.
46 Section 91R is headed "Persecution". Section 91R(3) provides that, for the purposes of the application of the Act to a particular person in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in the Refugees Convention, any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the decision maker that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention. Thus, in the present context, conduct engaged in by the appellant in Australia, such as her attendance at the meetings of the Local Church, is to be disregarded by the Tribunal, since the appellant did not satisfy the Tribunal that she did not engage in that conduct for the purpose of strengthening her claim to be a refugee. Specifically, that raises the question of whether the Tribunal failed to disregard the appellant’s conduct consisting of her attending meetings of the Local Church in Sydney.
47 The Tribunal suggested that it telephone Brother Poh in order to determine whether the Local Church was aware of the appellant’s application for a protection visa. Thus, it may be inferred that the Tribunal’s object in speaking to Brother Poh was prompted by the possible application of s 91R(3). Assuming, without accepting the correctness of the proposition, that conduct in Australia is to be disregarded even where the conduct leads to a conclusion that is adverse to an applicant, it is impossible to see how, in the present case, the Tribunal took into account the appellant’s conduct in attending meetings of the Local Church in Australia in determining whether the appellant has a well founded fear of persecution for reasons of religion if she returns to China.
48 The most that can be said is that the Tribunal concluded that any religious knowledge the appellant displayed in oral evidence was acquired as a result of her attendance at meetings in Australia. However, Brother Poh did no more than confirm what was said by the appellant concerning her attendance at meetings since August of 2007. A fair reading of the Tribunal’s reasons demonstrates that the Tribunal did not have regard to the appellant’s conduct in Australia in concluding that any religious knowledge that she displayed was acquired as a result of her attendance at meetings in Australia. Rather, the Tribunal made an assessment of the appellant’s credibility. That assessment was based on the way in which she gave her evidence and on the matters that caused concern to the Tribunal, as set out above.
49 The reference to the appellant’s having acquired religious knowledge from her attendance in Australia does not involve the Tribunal in having regard to the appellant’s conduct in Australia in determining whether she has a well founded fear of being persecuted in China. In that context, it is significant that the Tribunal expressed its concern on the basis of the appellant’s lack of knowledge of the Bible. In context, the Tribunal made the reference to her acquisition of religious knowledge when making primary findings of facts in order to ascertain whether s 91R(3) was engaged. Once engaged, the Tribunal stated that it disregarded the appellant’s conduct in Australia, which it did. There is no reason to doubt the truth of that statement. There was no failure to comply with s 91R(3) of the Act.
CONCLUSION
50 Neither of the grounds pressed in the appeal has been made out. It
follows that the appeal should be dismissed with costs.
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I certify that the preceding fifty (50) numbered paragraphs are a true copy
of the Reasons for Judgment herein of the Honourable Justices
Emmett, Bennett
& Middleton.
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Associate:
Dated: 3 June 2009
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Counsel for the First Respondent:
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Ms M Allars
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Solicitor for the Respondents:
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DLA Phillips Fox
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