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SZJMI v Minister for Immigration & Anor [2008] FMCA 1239 (9 September 2008)
Last Updated: 21 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZJMI v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION –
Application to review decision of Refugee Review Tribunal – whether
Tribunal constructively failed to exercise
its jurisdiction as a result of third
party fraud – whether material finding in the absence of probative
evidence – whether
misapplication of the law or whether decision
irrational, illogical, and not based on findings or inferences of fact supported
by
logical grounds. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP
|
|
Second Respondent:
|
REFUGEE REVIEW TRIBUNAL
|
|
Hearing dates:
|
15 November 2007, 29 January, 5 March, 7 July 2008
|
REPRESENTATION
Solicitors for the
Applicant: |
Teleo Group Pty Ltd
|
|
Counsel for the Respondent:
|
Mr Johnson
|
Solicitors for the Respondent: |
DLA Phillips Fox
|
ORDERS
(1) That the application be dismissed.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
SYDNEY
|
SYG 2875 of 2006
Applicant
And
|
MINISTER FOR IMMIGRATION & CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
Background
- This
is an application for review of a decision of the Refugee Review Tribunal handed
down on 8 August 2006 affirming a decision of
a delegate of the first respondent
not to grant the applicant a protection visa.
- The
applicant, a citizen of the People’s Republic of China, arrived in
Australia in February 2006 and applied for a protection
visa. He claimed to
have been a practitioner of Falun Gong since 2003. He claimed that he and his
friend had been taken to the
police station three times and told they would be
sent to gaol if they did not give up Falun Gong and that the police had come to
his home and taken away Falun Gong books. He claimed to have been a
“religious Falun Gong practitioner”, that if he was in China
he would keep practising Falun Gong and that the police would harm him, put him
in gaol or kill him.
- The
application was refused by a delegate of the first respondent who had regard to
the fact that the applicant’s claims were
scant and unsubstantiated and to
the absence of verifiable detail. The delegate also had regard to independent
evidence in relation
to the issue of passports and the entry and exit of Chinese
citizens, finding that the fact the applicant was able to legally and
recently
depart China was a strong indication he was not of significant and adverse
interest to the authorities at that time. The
delegate was not satisfied on the
limited information before him that the applicant’s situation was as
claimed.
- The
applicant sought review by the Tribunal on 27 April 2006. He did not
nominate an authorised recipient or agent in his application
to the Tribunal.
- On
25 May 2006 he notified the Department and the Tribunal of a change of address.
The Tribunal wrote to the applicant at the new
address by letter of 5 June 2006
inviting him to attend a Tribunal hearing on 5 July 2006. It advised him that
if he did not attend
the hearing and the Tribunal did not postpone it, it could
make a decision on his case without further notice. It also advised him
that
the Tribunal had considered the material before it in relation to his
application, but was unable to make a decision in his
favour on that information
alone.
- The
Tribunal recorded that the applicant did not reply to the hearing invitation and
did not attend the scheduled Tribunal hearing.
The Tribunal decision
- In
its reasons for decision the Tribunal indicated that it had decided pursuant to
s.426A of the Migration Act 1958 (Cth) to make a decision on the review
without taking any further action to enable the applicant to appear at a
hearing.
- The
Tribunal summarised the applicant’s claims as set out in the protection
visa application and the findings of the delegate.
- The
Tribunal found that the applicant had provided insufficient information to
enable it to be satisfied that he had a well-founded
fear of persecution in the
PRC for reason of his belief in or practice of Falun Gong.
- In
particular he had provided “few details about his practice or the
benefits it brought him” and had not “provided
sufficient details about the theoretical basis and specific beliefs peculiar to
Falun Gong” to enable the Tribunal to be satisfied that he was in fact
a genuine and committed Falun Gong practitioner in the PRC.
- The
Tribunal referred to the fact that the manner in which the applicant’s
claims were presented appeared to imply that the
Chinese government’s
crack-down on Falun Gong occurred after he first took it up in 2003, when in
fact this occurred in 1999.
The Tribunal also had regard to the fact that the
applicant had not explained why he took up Falun Gong at a time when it had been
banned for some years and had provided “few details” of his
practice in Falun Gong in the PRC prior to his departure and that “some
of those which he did provide appear to be inconsistent. For example, he stated
that he practised once a week, and also once
a day.” The Tribunal
continued “On the basis of the information provided by the applicant,
and in the light of his failure to attend a hearing in order to provide
additional information which would clarify these apparent inconsistencies, I am
unable to be satisfied that the applicant was in
fact a Falun Gong practitioner
in the PRC”.
- The
Tribunal found it most important that the applicant had provided little
information “about the difficulties he claims to have had with
the authorities because of his practice of Falun Gong”. It noted the
absence of dates or a timeframe over which three claimed detentions by the
police had occurred and the absence
of evidence as to whether the applicant
continued to practise Falun Gong on each occasion after he was released or why,
if this was
so, he was not sent to gaol as he claimed the police had threatened.
It also noted that the applicant had provided no information
about the
circumstances in which he decided to leave the PRC or whether he was of
particular interest to the authorities at the time
of his departure. The
Tribunal acknowledged that in the protection visa application the applicant had
stated that it was difficult
to get a passport, but found that he had provided
no details of such difficulties or whether they were related to his practice of
Falun Gong. It found that even if it accepted that the applicant had problems
with the authorities prior to his departure, the information
he had provided was
insufficient to enable it to be satisfied that he would be of interest to the
authorities and subject to persecution
if he were to return.
- The
Tribunal also had regard to the fact that the applicant had provided no
information about whether he currently practised Falun
Gong in Australia or
attended Falun Gong demonstrations or protests. In those circumstances and
given the scant details the applicant
had provided about his Falun Gong practice
in the PRC, the Tribunal was unable to be satisfied that he was a genuine or
committed
practitioner of Falun Gong or that he would continue to practise Falun
Gong if he returned to the PRC as claimed. It was therefore
unable to be
satisfied that if he were unable to do so this would constitute persecution.
- The
Tribunal referred to the fact that it is for an applicant to satisfy the
Tribunal that the statutory elements are made out and
that the Tribunal is not
required to accept uncritically allegations made by an applicant. It
concluded:
- The
applicant is on notice, as a consequence of the delegate’s decision and
the Tribunal’s letter of 24 March 2006, that
there were deficiencies in
the written information he had presented which precluded a favourable
determination of his application.
However, he has not taken the opportunity to
provide additional information, or to attend a hearing. On the basis of the
scanty
information provided by the applicant, and without the opportunity to
obtain further information at a hearing, I am unable to be
satisfied that the
applicant is indeed a genuine and committed Falun Gong practitioner. I cannot
be satisfied that he experienced
persecution as a Falun Gong practitioner prior
to his departure from the PRC, or that he was of continuing adverse interest to
the
PRC authorities at the time of his departure. I cannot be satisfied that he
has participated in Falun Gong activities in Australia
which might be known to
the PRC authorities. In these circumstances, I am not satisfied that the
applicant has a well founded fear
of persecution in the PRC for reason of his
belief in Falun Gong or because of any activities he has undertaken as a Falun
Gong practitioner,
either in the PRC prior to his departure, or since he has
been in Australia.
This application
- The
applicant sought review by application filed in this Court on 6 October
2006. When the matter first came before the Court for
hearing the applicant was
unrepresented. He made a number of claims in relation to his failure to attend
the Tribunal hearing.
He attributed responsibility for his failure to attend
the hearing to what he was told by an agent named Lucy. The applicant was
given
the opportunity to put evidence before the Court in proper form in relation to
these contentions. He attempted to do so.
The applicant’s submissions
and his affidavit evidence raised issues which involved consideration of the
question of fraud
in the manner considered by the High Court in SZFDE and
Others v Minister for Immigration and Citizenship and Another [2007] HCA 35; (2007) 232 CLR
189. The applicant was referred for pro bono legal assistance. Subsequently he
filed and now relies on a further amended application
as well as an affidavit
sworn and filed by him on 21 April 2008 and an accompanying affidavit sworn and
filed on 21 April 2008 as
to interpretation of the contents of that affidavit.
Each of the parties was given the opportunity to make further submissions.
- There
are four grounds in the further amended application.
Whether the Tribunal constructively failed to exercise its jurisdiction as a
result of third party fraud
- The
first ground in the further amended application is that the Tribunal
constructively failed to exercise its jurisdiction as a result
of third party
fraud of the applicant’s former registered migration agent (or a person
purporting to be a registered migration
agent).
- The
particulars to this ground are as follows:
- (a) The
Applicant appointed a lady named Lucy, of Success International, a business
operating in Sydney, to be his migration agent.
- (b) Lucy
provided immigration assistance in relation to the Applicant’s Protection
visa application and his review to and before
the Refugee Review
Tribunal.
- (c) The
Applicant was advised by Lucy not to attend a hearing before the Refugee Review
Tribunal because it would be a waste of his
time and that it would not help,
that it was just a standard procedure.
- (d) As a
result of that fraud, the Applicant was deprived of his opportunity to attend a
hearing before the Tribunal to present arguments
and to give evidence in support
of his application for review and the Tribunal was prevented from receiving such
evidence and arguments.
- In
his affidavit of 21 April 2008 the applicant stated that he appointed
“Lucy” of Success International to be his migration
agent for his
protection visa application. She filled out his protection visa application
form and he paid her “for her work”. She did not put her
name on the form. He did not know why she did not do so. She continued to be
his agent for the processing
of his application by the Department and at the
Tribunal.
- The
applicant’s uncontested affidavit evidence is that when he received an
invitation to the Tribunal hearing he went and saw
Lucy at her office in Sydney
and that words were said during that meeting to the following
effect:
- Applicant:
Should I go to the hearing?
- Lucy: You
don’t have to go. It is better that you don’t go. If they ask you
your story can you tell them? If you go
it is bad for your case. This is just
the normal procedure. It is a waste of time and it will not
help.
- The
applicant’s evidence is that he accepted this advice, but a few days
later, after talking to friends, he telephoned Lucy
and again asked her if he
should go to the Tribunal hearing. Words to the following effect were said
during that telephone conversation:
- Applicant: Are
you sure that I should not go to the hearing
- Lucy: It is
just a standard procedure. You are wasting your time. If you want to go to the
hearing, go.
- The
applicant stated that based on Lucy telling him it was a waste of time and
standard procedure he did not go to the Tribunal hearing.
- The
applicant’s solicitor tendered a copy of a letter dated 20 June 2005
to Lucy (who was identified by her full name by counsel
for the first
respondent) advising her that the matter was presently before the Court and of
the hearing date and enclosing a copy
of the applicant’s affidavit and the
further amended application.
- The
letter stated:
- The
Applicant, being [name of applicant], has alleged in his affidavit that,
when you were at Success International (then at [address specified]) you
advised him in relation to his RRT review of a decision to refuse his protection
visa application. He also alleges that you
essentially advised him that going
to the RRT hearing would be a waste of time, that the review was just a standard
procedure (refer
to his affidavit at paragraphs 2 to 5 inclusive).
- In order to
accord you procedural fairness, you are invited to attend the hearing on 7 July
2008 at 2.15pm to give evidence, if you
so choose, given the allegations made by
the Applicant. You can be subject to cross-examination by both the Applicants
and the Respondents
should you give evidence. You might wish to obtain
independent legal advice in relation to this matter.
- Lucy
did not attend and was not represented at the hearing. The only evidence of
what occurred between the applicant and Lucy is
the applicant’s affidavit
evidence. The applicant was not required for cross-examination by the first
respondent. Hence I
accept his account of what occurred. However this does not
of itself mean that third party fraud in the sense considered by the
High Court
in SZFDE has been established.
- The
applicant contended that as a result of the alleged fraud he was deprived of the
opportunity to attend a hearing before the Tribunal
to present arguments and to
give evidence in support of his application for review and the Tribunal was
prevented from receiving
such evidence and arguments. In SZFDE the High
Court stated:
- [47] French J
correctly identified the ultimate issue as the effect upon the Tribunal's
decision-making process, for which the Parliament
provided in Pt 7 of the
Act,
of the fraud of Mr Hussain.
- [48] As
indicated earlier in these reasons, the provisions of Pt 7
obliging the Tribunal to invite the applicant to appear before it to give
evidence and present arguments relating to the issues arising
in relation to the
decision under review (s 425(1)) and empowering the Tribunal to make a
decision on the review in the absence of an appearance (s 426A)
are of central importance for the legislative scheme laid out in Div 4 of
Pt 7 (ss 422B-429A) for the conduct of reviews. By s 422B that
Division provided that it is to be taken as an exhaustive statement of the
requirements of the natural justice hearing rule.
- [49] The
fraud of Mr Hussain had the immediate consequence of stultifying the operation
of the legislative scheme to afford natural
justice to the appellants. That this
is so is manifest by the reasons given by the Tribunal, which included the
statement:
- "The [first]
applicant was put on notice by the Tribunal that it is unable to make a
favourable decision on the information before
it but the applicant has not
provided any further information in support of her claims. Nor has she given the
Tribunal an opportunity
to explore aspects of her claims with her. A number of
relevant questions are therefore left unanswered.
- The Tribunal
is not satisfied, on the evidence before it, that the applicant has a
well-founded fear of persecution within the meaning
of the Convention."
- [50] Reference
has been made earlier in these reasons to the submission for the Minister that
any fraud perpetrated on the appellants
was not a fraud "on" the Tribunal.
Further, as noted above, Allsop J characterised the complaints of the
appellants as not about
the process but about their erstwhile agent and
concluded that neither the decision nor the statutory process "was corrupted by
fraud".
However, as in other areas of legal debate, including questions of
federal legislative power under the Constitution
itself, to say of a law or state of affairs that it bears one legal character
does not necessarily deny it a second legal character
which is of decisive
significance.
- [51] No
doubt Mr Hussain was fraudulent in his dealings with the appellants. But
the concomitant was the stultification of the operation
of the critically
important natural justice provisions made by Div 4 of Pt 7
of the Act. In
short, while the Tribunal undoubtedly acted on an assumption of regularity, in
truth, by reason of the fraud of Mr
Hussain, it was disabled from the due
discharge of its imperative statutory functions with respect to the conduct of
the review.
That state of affairs merits the description of the practice of
fraud "on" the Tribunal.
- [52] The
consequence is that the decision made by the Tribunal is properly regarded, in
law, as no decision at all. This is because,
in the sense of the authorities,
the jurisdiction remains constructively unexercised. The authorities were
collected in Bhardwaj.
[Footnotes omitted].
- The
applicant’s solicitor acknowledged that there was no reference to a
migration agent or other person providing assistance
to the applicant in his
protection visa application and that no details of any authorised recipient or
agent were provided to the
Department or Tribunal and that this was inconsistent
with the affidavit evidence now given by the applicant. However the
unchallenged
affidavit evidence of the applicant was that he did not go to the
hearing because Lucy told him that it was a waste of time and standard
procedure.
- It
was submitted for the applicant that what Lucy told the applicant was sufficient
to bring the circumstances of this case within
the concept of third party fraud
considered in SZFDE. The advice given by Lucy in this case was said to
be very similar to the type of advice that was given by the migration agent in
SZFDE. It was contended that the ultimate test was whether there had
been a “stultification” in relation to the Tribunal’s
review process and that in this case that had occurred because the applicant did
not attend
the Tribunal hearing because of his reliance on Lucy’s advice.
It was submitted that it would not have been a waste of the
applicant’s
time to attend, given that the Tribunal had indicated that it was not satisfied
that he met the criteria for the
visa on the material before it, at the time it
extended the invitation to a hearing. The applicant would have had the
opportunity
to elaborate on his claim to be a genuine Falun Gong practitioner.
- The
applicant’s solicitor acknowledged that mere negligence did not constitute
fraud, but contended that the advice in this
case went further than mere
negligent advice because it went towards confirming that the Tribunal had no
real role to play in administrative
review proceedings and that it took on the
character of fraud because of its stultification of the Tribunal’s
processes.
- The
applicant also contended that it was not essential that an adverse inference be
drawn as to the motivation of Lucy and that SZFDE did not set out a
particular formula for determining when fraud in the requisite sense was
established. Lucy’s statement to
the applicant that the Tribunal
procedure was a waste of his time, would not help and was just a standard
procedure, was said to
be fraudulent in the broad sense because it had the
effect of conveying an incorrect notion that the Tribunal’s role was
perfunctory
or a rubber stamp to affirm a decision of the delegate. It was
suggested that it was not necessary to go so far as to show that
the person
making such a statement was motivated by bad faith or had an ulterior reason as
to why he or she did not want the applicant
to attend a Tribunal hearing.
Rather, it was submitted that it was sufficient to show that the advice given
was such that it was
in essence a fraud on the Tribunal because of the effect
that it had.
- Counsel
for the first respondent submitted that SZFDE does not establish that if
advice is given which is acted upon which results in a stultification of the
Tribunal’s process
or an applicant not taking advantage of the opportunity
to appear before the Tribunal then that constitutes third party fraud. It
must
be established that there was fraud by the third party in question. Rather, it
is not enough that there was bad or negligent
advice or some other mishap by
reason of the third party’s conduct (see SZFDE at [53] and
Minister for Immigration and Citizenship v SZLIX and Another [2008] FCAFC 17; (2008) 245
ALR 501 at [21]). It was submitted that the applicant could not prove
his case without showing at least that there was dishonest conduct, that he
was
the unwitting victim of that dishonesty and that there was a causal link between
the dishonesty and the applicant not attending
the hearing.
- The
first respondent submitted that to establish fraud of the requisite kind it was
necessary to prove a particular motivation, i.e.
to prevent the Tribunal from
conducting a hearing (see SZHVM v Minister for Immigration &
Citizenship [2008] FCA 600 at [42]) or to deliberately stultify or disable
the Tribunal’s processes (SZHVM at [44]) and that conduct short of
that would be more properly characterised as bad advice (see SZHVM at
[43] and cases cited therein).
- It
was also submitted that in SZFDE the inference had been open on the
evidence that the third party (who had held himself out to be a solicitor and
registered migration
agent when his practising certificate and registration had
been cancelled) had acted as he did for self-protection, lest his apparently
unlawful conduct in contravention of the Act be revealed in a Tribunal hearing,
but that no such inference was open on the evidence
before the Court in this
case.
- The
first respondent contended that fraud would not be established merely by reason
of the fact that a purported migration agent was
not registered or by the mere
fact of a client acting upon the advice of someone who was not in fact a
registered migration agent
(SZLIX at [32] – [33] and SZEEU and
Others v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCAFC 2; (2006) 150 FCR 214 at [42]).
- It
was said that in this case, even accepting the applicant’s affidavit
evidence, all that had happened was that he had received
advice which might said
to be bad or incorrect advice. There was said to be no evidence that the advice
was dishonest. It was contended
that on the applicant’s evidence it had
not been shown that the advice given by Lucy was dishonest, because the advice
could
have been given honestly, whether or not it was considered to be
negligent.
- Hence
it was submitted that the conversations attested to by the applicant did not
establish the element of dishonesty necessary to
constitute third party fraud
such as found in SZFDE. Based on the applicant’s evidence, it was
not inconceivable that a person in the position of Lucy might form the view that
if a particular applicant went along to a Tribunal hearing that applicant would
not assist his own case (whether or not that was
correct). It was also
submitted that to establish third party fraud through the provision of advice it
was necessary to prove not
only dishonesty, in that the advice was fraudulent to
the applicant, but also that the fraud brought about the stultification of
the
Tribunal’s process.
- In
submissions in reply the solicitor for the applicant accepted that negligence
was not sufficient to constitute fraud, but submitted
that it was not necessary
to establish bad faith and that perhaps recklessness would suffice. It was also
said that the authorities
made it clear that it was appropriate to draw
inferences from conduct and submitted that on the uncontested evidence before
the Court
there was an inference that could be drawn that Lucy had acted in
self-preservation. It was pointed out that there was no evidence
before the
Court of any notification to the Department or Tribunal from Lucy that she acted
for the applicant or that she received
payment acting for the applicant as
required under ss.312A and 312B of the Migration Act 1958 (Cth) and that
it was an offence under s.280 of the Act for a person who was not a registered
migration agent to give immigration assistance for reward. It was submitted
that
the inference could reasonably be drawn in the circumstances of this case
that there was a motivation of self-preservation akin to
that in SZFDE
and that there was a reasonable inference that there was fraud in circumstances
where the motivation for giving the advice and the
reason for giving the advice
was self-preservation.
- Counsel
for the first respondent took issue with the fact that the applicant in reply
had raised what was said to be a new case of
fraud which had not been pleaded or
previously addressed. Initially the case had been put as based on advice given
to the applicant.
There was said to be no suggestion either in pleadings, in
the written submissions or in the evidence, of any actual dishonesty
by Lucy,
much less of any motivation of self-preservation. It was contended that if
fraud was to be alleged it needed to be clearly
alleged and distinctly proved
and that that had not occurred. It was also said to be relevant that the
contention in relation to
the drawing of an inference as to motivation had not
been advised to Lucy.
- In
any event, the first respondent submitted that even if there was some breach of
the Migration Act by an agent or a purported agent or if someone was acting as
an agent when not registered, this would not of itself suffice as there
had to
be some actual dishonesty or fraud practised upon the applicant and a causal
link between that and (in this case) the denial
of the hearing. It was said
that the element of causation was not established and that while the applicant
did not attend the hearing
because he was advised not to do so and he accepted
that advice, the fact that he acted on bad advice did not make it fraudulent.
- The
applicant contended that while the question of inferences was not dealt with in
the submissions, the ground in the further amended
application was pleaded
broadly as an allegation of fraud and that necessarily entailed a consideration
of whether there was an inference
of bad faith to be drawn. It was said that it
was necessary to have regard to inferences because Lucy had not attended the
hearing,
despite having been notified. Hence there could be no actual knowledge
of what was in her mind. It was submitted that in all the
circumstances an
inference could and should be drawn that she gave this advice because she had
not complied with the obligations
under the Act or had breached the obligation
not to give migration advice when not a registered agent. It was conceded
however that
there was no evidence before the Court as to Lucy’s status at
the relevant time.
Resolution
- Neither
party cited any authority in relation to the issue of the necessity for
notification to the third party in a case such as
this. Such notification had
taken place in SZFDE, although the agent in question did not ultimately
give evidence before the Federal Magistrates Court. However in SZIVK v
Minister for Immigration & Citizenship [2008] FCA 334 Finkelstein J
considered an allegation that a migration agent had provided false information
and forged documents to the Tribunal
on appeal from a decision of a Federal
Magistrate who had refused to determine the allegation of fraud in circumstances
where none
of the documents in the proceedings had been served on the migration
agent and the agent therefore had not appeared or made any submissions
to the
Court.
- Finkelstein
J considered whether the Federal Magistrate erred by refusing to make findings
of fact as to whether or not the agent
had acted fraudulently in the absence of
notice to the agent (at [21]). His Honour drew a distinction between the
procedure in administrative
tribunals, where the rules of procedural fairness
require a person to be given an opportunity to be heard before findings adverse
to such person’s interests are made, and curial proceedings. Finkelstein
J stated at [23] that: “Being adversarial, in curial proceedings it is
the parties, not the decision-maker, that define the issues to be contested,
select
the witnesses they intend to call, choose the evidence they wish to lead
and to which they intend to object, and decide which arguments
will be pursued
and which will be abandoned. [Footnotes omitted].”
- Finkelstein
J noted that in adversarial litigation if a third party was criticised he could
be called by one of the parties and would
thus have the opportunity to rebut the
criticism, but continued (at [25] – [26]) that:
- [25] ... it
is often the case that a third party is criticised and not called as a witness.
The reason he is not called, assuming
him to be available to give evidence, is
that the party who may be adversely affected if the criticism is accepted has
made a decision
not to call that person. That is the party’s right. In
some cases the exercise of that right may lead to an adverse inference
being
drawn against that party. However that may be, there is no rule to the effect
that the criticised person must be given notice
that he is to be attacked in
evidence to be given. There are good reasons why there is no such rule. As I
have explained, it follows
from the adversarial nature of our trial system. In
any event, even if given notice there is usually nothing the third party can
do.
He cannot demand that he be permitted to give evidence. If that were the
position, trials would become unmanageable. In limited
circumstances a judge
may allow a non-party to be heard ... But the circumstances in which leave will
be granted are rare.
- [26] In my
view, therefore, there was no justification for the Magistrate to refuse to
decide whether the migration agent had acted
fraudulently on account of lack of
notice. His failure amounts to an appealable error of law.
...
- Hence
I must determine whether it has been established that Lucy acted fraudulently,
notwithstanding that she has not been heard.
Moreover the failure to notify her
of the basis on which the applicant now seeks to establish fraud (by the drawing
of an inference
in relation to her motivation) is not a reason for not
considering that aspect of the claim.
- Neither
the further amended application nor the applicant’s written submissions
addressed the issue of an inference of dishonesty
or a motivation of
self-preservation except insofar as it was contended generally that there was
fraud on the part of Lucy, the applicant’s
actual or purported registered
migration agent. Denning LJ put it in Lazarus Estates Ltd v Beasley
[1956] 1 QB 702 at 712 – 713: “The Court is careful not to
find fraud unless it is distinctly pleaded and proved”. However, it
was not known whether Lucy would attend the hearing. Indeed at the hearing the
first respondent sought and
was granted leave to file supplementary written
submissions prepared on the basis that there had been no appearance by Lucy.
- On
balance in the particular circumstance of this case I am not persuaded that the
applicant should not be permitted to rely on an
argument that an inference could
be drawn of self-preservation on the part of Lucy and hence fraud. No additional
evidence was sought
to be relied on and the first respondent had the opportunity
to address this contention.
- However
while in an appropriate case (such as SZFDE) an inference of a motivation
of self-preservation and hence fraud might be drawn, in this case I am not
satisfied on the evidence
before me that such an inference should be drawn. I
have had regard to the level of satisfaction required in relation to a claim
based on third party fraud (see Briginshaw v Briginshaw and Another
[1938] HCA 34; (1938) 60 CLR 336, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCA 66; (1992) 67 ALJR 170 at 170 – 171 per Mason CJ, Brennan, Deane and
Gaudron JJ, SZLIX at [33] and s.140(2) of the Evidence Act
1995 (Cth)).
- In
SZFDE there was evidence before the Court that the third party in
question had represented to the appellants that he was a solicitor and
licensed
migration agent, but that his practising certificate and registration had in
fact been cancelled. As French J had pointed
out in dissent in the Full Court
of the Federal Court (see Minister for Immigration and Multicultural Affairs
v SZFDE and Others [2006] FCAFC 142; (2006) 154 FCR 365 at [129] – [130]) the third
party gave fraudulent advice to the appellant that the Tribunal was
“not accepting any visa applications at all” at that time and
expressed a false concern that if the appellant and her family appeared before
the Tribunal they would say
something inconsistent with his proposed submissions
to the Minister. This advice was said to amount to a representation that the
Tribunal process was a sham and that participation in it could prejudice the
appellant’s prospect of a successful outcome.
It was in those
circumstances that the inference could be drawn that the third party had acted
out of self-preservation in giving
advice not to attend the hearing, lest his
breach of statutory obligations be discovered in such a hearing.
- The
evidence in this case is not such that an inference can be drawn as to a
motivation of self-preservation in the sense considered
in SZFDE. There
is no evidence before the Court as to whether or not Lucy is or was a registered
migration agent. A finding that she was unregistered
at the relevant time is
not open on the evidence before the Court (see similarly SZLIX at [23]
– [26]). Even if she was unregistered and if the applicant was thereby
misled that would not of itself establish fraud
or that her acts or omissions in
relation to the applicant were dishonest or such as to constitute a fraud on the
Tribunal (SZLIX at [32]). As the Full Court of the Federal Court stated
in SZLIX (at [33]) the Parliament has created a series of offences
in the Act in relation to the giving of immigration assistance by unregistered
migration agents but: “It has not gone on to reverse ... such adverse
consequences as may enure to a person in the enjoyment of the procedural
fairness benefits
provided by the Act as may be occasioned by reliance upon the
immigration assistance supplied ... by an unregistered migration agent.
Neither
has the common law gone so far in its fraud doctrine: see SZFDE at
[53].”
- It
was nonetheless recognised in SZLIX (at [33]) that as (in SZFDE)
there may still be cases in which an agent is fraudulent in his or her dealings
with a visa applicant “in such a manner as results directly in a fraud
on the Tribunal in relation to the due discharge of its Pt
7 Div 4 functions.”
- Finkelstein
J accepted in SZIVK (at [34]) that “As to false information, it
would be fraudulent if it is made by a person who does not believe in its truth
or is recklessly indifferent
to its truth: Commercial Banking Company of
Sydney Limited v R H Brown & Co [1972] HCA 24; (1972) 126 CLR 337, 343”.
There is, however, no suggestion that Lucy provided false information to the
Tribunal or, indeed, that she communicated with the
Tribunal, let alone
communicated in such a way that it could be concluded that her conduct was
deliberately fraudulent or at the
least recklessly indifferent as considered in
SZIVK. Nor is the evidence before the Court such as to establish
reckless indifference as to the truth of what she said to the applicant.
- The
High Court in SZFDE did not find it necessary to determine the scope of
judicial review for “third party fraud” of an administrative
decision, although it made it clear that fraud is “infinite in
variety” as Lord Macnaughten recognised in Reddaway v Banham
[1896] AC 199 at 221. Nonetheless it is also clear that a finding of fraud is a
serious matter. In this case, as submitted for the first respondent,
it has not
been established.
- The
fact that Lucy told the applicant that the Tribunal procedure was a waste of his
time, would not help and was just a standard
procedure is not such as to
establish fraud. The fact that the advice was acted on by the applicant does
not render it fraudulent,
even though it may be said to have stultified the
Tribunal process in the sense that the applicant did not attend the hearing.
Such
advice could, depending on the nature and basis of an applicant’s
claims, be given honestly. Even if it was bad advice or
negligent it has not
been shown to constitute fraud, whether as dishonest conduct or as information
provided by a person who was
recklessly indifferent to its truth. There is no
evidence of Lucy’s state of mind and no inference of dishonesty or
reckless
indifference can be drawn on the limited evidence before the Court.
What she said is not such as to amount to a representation that
the Tribunal
process was perfunctory or a sham, as distinct from a suggestion that the
“normal” or “standard” procedure of the
Tribunal would not assist this particular applicant to obtain a protection visa.
It has not been established
that she deliberately sought to stultify or disable
the Tribunal process. An alternative explanation (such as that she considered
that the applicant’s case could not succeed or that the advice she gave
was simply bad advice) is open. Even if the advice
she gave was inconsistent or
negligent that does not of itself establish fraud.
- As
the High Court stated in SZFDE at [53] by reference to what was said by
French J in the Full Court of the Federal Court: “there are sound
reasons of policy why a person whose conduct before an administrative Tribunal
has been affected, to the detriment
of that person, by bad or negligent advice
or some other mishap should not be heard to complain that the detriment vitiates
the decision
made. The outcome in the present appeal stands apart from and
above such considerations”. I note that Besanko J suggested in
SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980 at
[33] that “an applicant’s failure to appear before the Tribunal
by reason of the bad or negligent advice of his or her agent, as distinct
from
fraudulent advice or conduct, is not without more sufficient to constitute
jurisdictional error” (and see SZLIX at [33]). On this basis
the third party must be shown to have acted “fraudulently.”
- Further,
as the first respondent submitted, conduct does not take on the character of
fraud simply because it has the effect of stultifying the
Tribunal’s process. The High Court in SZFDE stated at [47] that
the “ultimate issue” was the effect on the Tribunal’s
decision-making process of the fraud of the agent, not that the test of fraud
was whether
there had been a “stultification” of the
operation of the legislative scheme to afford natural justice to applicants. As
the High Court made clear at [51],
it is the fact of “fraud”
in the third party’s dealings with the applicant and the
“concomitant” of stultification of the natural justice
provisions in Division 4 of Part 7 of the Act that means that there has been
fraud “on” the Tribunal. In SZFDE the impact on the
due discharge of the Tribunal’s imperative statutory functions was
“by reason of” the fraud of the third party. However
SZFDE does not establish that the fact that there can be said to be a
“stultification” of the Tribunal process in the sense that
advice is given that leads an applicant not to attend a hearing to which he or
she
was entitled of itself amounts to fraud. (See SZHVM at [47]). Such
an approach would leave no room for the distinction the courts have drawn
between bad or negligent advice and dishonest
advice.
- Moreover,
as the Full Court of the Federal Court indicated in SZLIX at [33], while
SZFDE requires the third person to be “fraudulent in a way that
effects the Tribunal’s Pt 7 decision-making process”, there must
be fraud vis-a-vis the applicant before the conduct can properly be said to have
occasioned a fraud on the Tribunal
(see SZFDE at [51]). On the evidence
before the Court fraud on the part of Lucy has not been established.
- This
ground is not made out.
Whether the Tribunal made a material finding in the absence of probative
evidence
- Ground
two in the further amended application is that the Tribunal made a material
finding in the absence of probative evidence.
There are two particulars to this
ground. The first particular is not pressed. The second particular is as
follows:
- The
Tribunal found that the Applicant had given inconsistent evidence in relation to
his Falun Gong practice, namely that “he
stated that he practised once a
week, and also once a day” when no such inconsistency
existed.
- The
relevant Tribunal finding relied on by the applicant is as
follows:
- He has
provided few details of his practice of Falun Gong in the PRC prior to his
departure – and some of those which he did
provide appear to be
inconsistent. For example, he stated that he practised once a week, and also
once a day. On the basis of the
information provided by the applicant, and in
the light of his failure to attend a hearing in order to provide additional
information
which would clarify these apparent inconsistencies, I am unable to
be satisfied that the applicant was in fact a Falun Gong practitioner
in the
PRC.
- The
solicitor for the applicant submitted that this was a reference to the claims in
the protection visa applicant and that what the
applicant had actually claimed
in answer to question 40 in Part C of his protection visa application was as
follows: “In 2003, I started to learn Falun Gong from my best friend,
... He lived in my next door. At the first time I read the book of Falun
Dafa.
Then I practiced the Falun Gong every week. I felt my headache has gone. I
became stronger. I practiced Falun Gong every
day”.
- It
was submitted that there was in fact no inconsistency in relation to how often
the applicant claimed he practised Falun Gong in
China, as he had stated that he
started off practising every week and when he saw the benefits that it brought
him, namely the alleviation
of his headache and the fact that he became
stronger, he started to practise every day. It was contended that the applicant
had
not stated that he practised once a week and also once a day as the Tribunal
found.
- This
was said to be a critical finding by the Tribunal as it was part of the reason
why the Tribunal was not satisfied that the applicant
was a Falun Gong
practitioner in China. It was argued that if the Tribunal had been satisfied
that the applicant was a Falun Gong
practitioner in China this may have led to a
different result in its consideration of whether the claimed detentions and the
claimed
fear of persecution in fact existed.
- The
applicant submitted that the Tribunal fell into jurisdictional error by making a
finding of fact or drawing an inference without
any probative evidence (see
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO
& VOAP [2005] FCAFC 50 at [5], SFGB v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 at [19] and [30] and
QAAA of 2004 v Minister for Immigration & Multicultural & Indigenous
Affairs [2007] FCA 1918 and authorities discussed at [22]). It was
contended that the Tribunal had not merely failed to attribute weight to a
particular
item of information. Rather it had found that there was an
inconsistency which did not exist.
- Counsel
for the first respondent did not concede that jurisdictional error occurred if
the Tribunal made a finding of fact in support
of which there was no evidence if
that fact was not a jurisdictional fact, but in any event submitted that the
applicant’s
argument proceeded on a false premise that the Tribunal did
not appreciate that the applicant claimed that he practised every week
and then
every day. In the Tribunal’s summary of the applicant’s claims and
evidence it had correctly recorded the applicant’s
claim to fear
persecution as a Falun Gong practitioner and “He claimed that he
started to learn Falun Gong in 2003 from his next door neighbour. He read the
book of Falun Dafa, and practised
every week and then every day. His headache
disappeared and he became stronger.” It was submitted that when read
in context it was clear that in its findings and reasons the Tribunal was not
making a finding
that the applicant had described himself as a daily
practitioner and also as a weekly practitioner with respect to the same point
in
time. Hence it was said that this was not a situation that could be categorised
as the making of a material finding in the absence
of probative evidence.
- Further
it was submitted that it was a matter for the Tribunal whether what was claimed
by the applicant was inconsistent and that
the fact that the applicant claimed
that his headache disappeared or that he became stronger did not compel the
Tribunal to see his
claimed shift from being a weekly practitioner to being a
daily practitioner as consistent and/or as satisfactorily explained.
- In
any event, the first respondent contended that the Tribunal decision was not
based upon the alleged inconsistency, as it was apparent
from the whole of the
Tribunal’s reasons for decision that the reason for its decision was that
it simply had not been moved
to the state of satisfaction that was required in
circumstances where the applicant had failed to respond to the s.425 invitation
in which the Tribunal had indicated that it could not make a favourable decision
on the information before it.
Resolution
- As
the solicitor for the applicant pointed out, the fact that the Tribunal
correctly summarised the applicant’s claims in the
claims and evidence
part of its reasons for decision would not of itself prevent there being any
jurisdictional error in its findings
and reasons.
- However
in this case the applicant failed because on the limited information before it
and without the opportunity to obtain further
information at a hearing the
Tribunal was unable to be satisfied that the applicant had a well-founded fear
of persecution. The
Tribunal decision was based on its lack of satisfaction
that the criteria for the claims of visa sought were satisfied (see SJSB v
Minister for Immigration & Multicultural & Indigenous Affairs [2004]
FCAFC 225 at [15]; Minister for Immigration & Multicultural &
Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17] and NAST v
Minister for Immigration & Multicultural & Indigenous Affairs [2004]
FCAFC 208 at [4] – [5]).
- Here,
as in NAST, the Tribunal listed a number of perceived inadequacies in the
information before it and matters on which it would have wished to
satisfy
itself at a hearing. In that context, notwithstanding that it appreciated that
the applicant claimed that he practised Falun
Gong every week and then every
day, it was open to the Tribunal to determine that there was an
“apparent” inconsistency in the applicant’s description
of the frequency of his practice of Falun Gong on which it would have sought
clarification at a hearing.
- The
Tribunal’s findings in issue were an illustration of the Tribunal’s
concern about the fact that the applicant had
provided few details of his
practice of Falun Gong in China and that “some of those which he did
provide appear to be inconsistent [emphasis added]”. In other
words the Tribunal had regard to the fact that there were
“apparent” inconsistencies which had not been clarified given
the applicant’s failure to attend a hearing to provide additional
information. The Tribunal was not making a finding that the applicant had in
fact made inconsistent claims that at the same time
he practised both once a
week and once a day, but rather that he made each of those claims in a manner
which could be seen as inconsistent
and which the Tribunal did not regard as
satisfactorily explained on the limited information before it, in the absence of
clarification
by the applicant at a hearing. It did not reject his claims based
on a finding of inconsistency.
- The
Tribunal’s statement that some of the limited details of the practice of
Falun Gong the applicant provided appeared to be
inconsistent is not a finding
for which it can be said that there was no probative evidence, in light of the
manner in which the
applicant’s claims were set out in the protection visa
application.
- More
generally, it cannot be said there was no evidence to support the
Tribunal’s decision or a finding on which the decision
was based in the
sense considered by the Full Court of the Federal Court in SFGB at [19]
and [30] (and also see VOAO at [5] and QAAA at [22]). The Tribunal
did not reject the claim because of actual or apparent inconsistencies. Rather
on the limited and unclassified
information before it and in the absence of
clarification it was unable to be satisfied that the applicant met the criteria
for the
class of visa in issue. This ground is not made out.
Whether Tribunal misapplied the law
- The
third ground in the further amended application is that the Tribunal misapplied
the law when determining whether the applicant’s
fear of harm was
unfounded. There are two particulars to this ground:
- (i) The
Tribunal failed to make a finding on two material claims made by the
Applicant:
- (a) Whether
he and his friend had been arrested three times by the police and threatened
with imprisonment if they did not give up
Falun Gong;
- (b) Whether
the Applicant’s house was raided by the police and his Falun Dafa books
taken.
- (ii) The
Tribunal failed to speculate in the way required in that, if the Applicant had
been detained by the police on three occasions
because he was perceived by them
to be a Falun Gong practitioner, it had to then consider whether circumstances
had changed such
that the inference that the Applicant would be subjected to
similar treatment on return should not be drawn.
- In
his protection visa application the applicant claimed that he and a friend had
been arrested on three occasions and threatened
with imprisonment if they did
not give up Falun Gong and also that the police raided his house and seized his
Falun Dafa books.
The applicant submitted that the Tribunal’s statement
that “Even if it were accepted that the applicant had problems with the
authorities prior to his departure, the information he has provided
is
insufficient to enable me to be satisfied that he would be of interest to the
authorities, and subject to persecution, if he were
to return” did not
amount to a finding in relation to whether or not the Tribunal accepted either
or both of the claims in the first
particular.
- While
the Tribunal noted that the applicant had also claimed he had difficulties
obtaining a passport, it was also contended that
the Tribunal was under an
obligation to make findings in relation to each material claim and that it did
not adequately deal with
the matters raised by the applicant as was said to be
necessary for it to do in determining whether or not the applicant had a
well-founded
fear of persecution. It was said that whether a person had
suffered persecution in the past and whether something had actually occurred
was
clearly material to such an enquiry.
- The
Tribunal referred to the applicant’s claimed “problems”
with the authorities, but did not elaborate on what it meant. It was said not
to be clear whether the reference to “problems” was a
reference to the applicant’s claimed problem in relation to obtaining a
passport or his claim about being taken
to the police station and/or about the
raid on the applicant’s house. These were said to be critical claims. It
was submitted
that the Tribunal had not gone far enough in carrying out
fact-finding it had to undertake to determine the question of whether there
was
a well-founded fear of persecution.
- The
applicant relied on Htun v Minister for Immigration and Multicultural Affairs
[2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J and SZGUW v Minister for
Immigration & Citizenship [2008] FCA 91 at [68] – [70] per
Jacobson J. As Allsop J stated in Htun at [42] there is a distinction
between errant fact-finding and a consideration of claims and their component
integers, which are
considerations made manditorily relevant by the Migration
Act for consideration in the sense discussed in Minister for
Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162
CLR 24 and Minister for Immigration and Multicultural Affairs v Yusuf
[2001] HCA 30; (2001) 206 CLR 323. The Tribunal’s obligation is to address and deal with
the claims as put to it. (See Dranichnikov v Minister for Immigration and
Multicultural Affairs (2003) 77 ALJR 1088 at [24] and NABE v
Minister for Immigration and Multicultural and Indigenous Affairs (No 2)
[2004] FCAFC 263; (2004) 144 FCR 1 at [55] – [57]). As Jacobson J suggested in
SZGUW (at [68]) the Tribunal’s obligation is to consider
“a substantial aspect or integer of the appellant’s case that was
sufficiently plain on the facts that were established (emphasis
added)”. Failure to do so will amount to a constructive failure to
exercise the Tribunal’s jurisdiction.
Resolution
- As
submitted for the first respondent, rather than failing to deal with an element
of the applicant’s claim, the Tribunal understood
and considered the
applicant’s claim to fear persecution as a practitioner of Falun Gong.
The applicant was unsuccessful because
on the evidence before it the Tribunal
was not able to reach the requisite level of satisfaction that he had a
well-founded fear
of persecution in the PRC for reason of his belief in or
practice of Falun Gong. It is apparent that its reason for reaching that
conclusion was the insufficiency of the evidence provided by the applicant. In
that respect it had regard to the fact that the applicant
had provided little
information about the difficulties he claimed to have experienced with the
authorities because of his practice
of Falun Gong.
- On
the limited evidence before it the Tribunal was not satisfied that the claimed
past harm had occurred because of the applicant’s
practice of Falun Gong,
including his claims about arrest, threats and a police raid prior to his
departure from the PRC. This is
apparent from its observations that the
applicant had not provided dates or a time frame or stated whether he continued
to practise
Falun Gong thereafter or why there were no consequences if he did so
in light of his claims that he had been threatened with gaol.
- The
Tribunal was not under an obligation to consider and make findings in relation
to every item of evidence advanced by the applicant
in support of his claims
(see Htun at [42] per Allsop J and MZWBW v Minister for Immigration
& Multicultural & Indigenous Affairs [2005] FCAFC 94 at [26] –
[27]). It had regard to the applicant’s claims in relation to the
difficulties he had with the authorities.
Its consideration of the inadequacy
of the information before it clearly extended to the information about his
claimed arrest, the
claimed threats and that his house was raided by the police
and his books taken. It found that there was little information before
it in
relation to such claims. This was insufficient to satisfy it that if he had
experienced any difficulties they were related
to his claimed practice of Falun
Gong in China. Logically this encompassed any claim that he had suffered any
consequences as a
result of being a Falun Gong practitioner as is clear from the
Tribunal’s subsequent conclusion that it could not be satisfied
that the
applicant had experienced persecution as a Falun Gong practitioner prior to his
departure from the PRC.
- The
Tribunal finding that it could not be satisfied in this respect and also that it
could not be satisfied that the applicant was
of any continuing adverse interest
to the PRC authorities at the time of his departure from China, amounted to a
finding that it
was not satisfied on the information before it that the claimed
past harm in fact occurred as claimed. However the Tribunal went
on to consider
this aspect of the applicant’s claims in the alternative on the basis that
even if such problems had occurred,
the information he had provided was
insufficient to enable it to be satisfied that he would be of interest to the
authorities and
subject to persecution if he returned to China.
- As
McHugh J stated in Re Minister for Immigration and
Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR
405 at [65] “It is not necessary for the Tribunal to give a line
by line refutation of the evidence for the claimant either generally or in those
respects where there is evidence that as contrary to the findings of material
fact made by the Tribunal”. The Tribunal considered the
applicant’s claims about past harm, but in light of the limited
information which he had
provided was not satisfied that he had been a Falun
Gong practitioner in China, that he experienced persecution as such a
practitioner
prior to his departure or that he was of continuing adverse
interest to the authorities at the time of his departure. No jurisdictional
error has been established in the manner contended for under this particular to
ground three.
Whether Tribunal required to speculate about the future
- The
second particular to ground three is as follows:
- (ii) The
Tribunal failed to speculate in the way required in that, if the Applicant had
been detained by the police on three occasions
because he was perceived by them
to be a Falun Gong practitioner, it had to then consider whether circumstances
had changed such
that the inference that the Applicant would be subjected to
similar treatment on return should not be drawn.
- The
applicant relied on Minister for Immigration and Ethnic Affairs v Guo and
Another (1997) 191 CLR 559 at 574 and 575. In that case Brennan CJ, Dawson,
Toohey, Gaudron, McHugh and Gummow JJ discussed the extent to
which past events
were a guide to the future and stated at 574: “The extent to which past
events are a guide to the future depends on the degree of probability that they
have occurred, the regularity
with which and the conditions under which they
have or probably have occurred and the likelihood that the introduction of new
or
other events may distort the cycle of regularity.”
Resolution
- As
the first respondent submitted, the Tribunal did not err in the manner
suggested. Given that it was not satisfied that the applicant
was a Falun Gong
practitioner the Tribunal was not satisfied that he had experienced past
persecution as a Falun Gong practitioner.
Hence it was not necessary for it to
speculate whether circumstances had changed such that the inference that the
applicant would
be subjected to similar treatment on return should not be drawn.
- The
Tribunal addressed the claims made by the applicant. It had regard to the
limited information before it in particular respects
relevant to its inability
to be satisfied that the applicant was a Falun Gong practitioner and that he had
a well-founded fear of
persecution in the PRC for reason of his belief in or
practice of Falun Gong.
- The
Tribunal also considered the possibility that the applicant had experienced
problems with the authorities prior to his departure,
but found that the
information he had provided was insufficient to enable it to be satisfied that
he would be of interest to the
authorities and subject to persecution if he were
to return.
- Hence
the claimed past harm was considered and was the subject of findings. The
Tribunal was not obliged to accept that such events
had occurred. Given the
manner in which it addressed the applicant’s claimed past difficulties and
its lack of satisfaction
about his claims on the limited evidence before it, it
was not necessary for it to consider the possibility of a change of
circumstances
in China as contended.
- It
has not been established that the Tribunal misapplied the law when determining
whether the applicant’s fear of harm was well-founded.
Irrationality or lack of logic
- Ground
four in the further amended application is that the Tribunal’s decision
was irrational, illogical and not based on findings
or inference of fact
supported by logical grounds.
- It
was contended for the applicant that where a Tribunal decision was irrational,
illogical and not based on findings or inferences
of fact supported by logical
grounds, such decision was infected with jurisdictional error and should be
quashed (see Minister for Immigration and Multicultural and Indigenous
Affairs v SGLB (2004) 78 ALJR 992 at [38] per Gummow and Hayne JJ).
Reference was made to the fact that in SZAPC v Minister for Immigration &
Multicultural & Indigenous Affairs [2005] FCA 995 at [57]
Madgwick J discussed the scope of the “no evidence”
ground of jurisdictional error, suggesting that it would only apply if there was
no evidence to support a finding of jurisdictional
fact, that the authorities
established that there were constitutional minimal standards of judicial review,
that the powers of decision-makers
were not to be exercised capriciously and
also that it was a “critical legal requirement that the determination
should not be able to be characterised as ‘irrational, illogical and not
based
on findings or inferences of fact not supported by logical grounds”
(and see SGLB at [38]).
- It
was submitted that the Tribunal had not dealt with the case put before it, in
that it did not have proper regard to the applicant’s
case as put and did
not make findings that were supported by logical grounds, such that the decision
was infected with jurisdictional
error in the manner considered by the High
Court in Dranichnikov.
- In
Dranichnikov the High Court found that the Tribunal had constructively
failed to exercise its jurisdiction by not making a decision on a substantial
clearly articulated argument relying on established facts (see Gummow and
Callinan JJ at [24]). As Kirby J stated at [88] –
[89], while not every
mistake in understanding the facts, applying the law or reasoning to a
conclusion would amount to a constructive
failure to exercise jurisdiction,
where the mistake is “essentially definitional, and amounts to a basic
misunderstanding of the case brought by an applicant, the resulting flaw is so
serious
as to undermine the lawfulness of the decision in question in a
fundamental way”.
- The
first respondent did not concede that want of logic would itself suffice to
establish jurisdictional error (see NACB v Minister for Immigration &
Multicultural & Indigenous Affairs [2003] FCAFC 235 at [24] –
[30]; VWST v Minister for Immigration & Multicultural & Indigenous
Affairs [2004] FCAFC 286 at [17] – [18] and WAJQ v Minister for
Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79 at
[22]), and in any event submitted that no irrationality, illogicality or failure
to consider a claim the Tribunal was jurisdictionally
obliged to consider had
been established.
Resolution
- There
is considerable authority to the effect that want of logic in itself does not
show jurisdictional error (see Minister for Immigration & Multicultural
& Indigenous Affairs v W306/01A [2003] FCAFC 208; W404/01A of 2002 v
Minister for Immigration & Multicultural & Indigenous Affairs [2003]
FCAFC 255; NATC v Minister for Immigration & Multicultural &
Indigenous Affairs [2004] FCAFC 52 in which the Full Court of the Federal
Court referred at [25] to NACB as it did in VWST). In SZDTZ v
Minister for Immigration & Citizenship [2007] FCA 1824 Greenwood J
reviewed some of the authorities in relation to illogical or irrational
reasoning (at [17] – [30]) before suggesting
(at [31] – [32]) that
the central matter was as follows:
- [32] A
determination of the Tribunal as to a state of satisfaction or otherwise, of the
relevant criteria or criterion in question, that
is based upon a finding of fact
or inferences drawn from facts, not based on logical or rational grounds, will
give rise to an error
of jurisdiction if there is no evidence to support the
finding or no proper basis for drawing the inference; or, if there be some
evidence, although inadequate, reliance by the Tribunal upon that inadequate
evidence gives rise to an inference that the Tribunal
has misconceived the test
or is not, in reality, satisfied of the requisite matters, as a result of which
there has been only a purported,
rather than a real, exercise of the power
conferred upon the Tribunal.
(and see SZDFZ v
Minister for Immigration and Citizenship and Another [2008] FCA 390; (2008) 168 FCR 1 at
[42] per Flick J). However, as discussed below, in this case it has not been
established that the Tribunal erred in such a manner.
- There
are six particulars to this ground, each of which was addressed in submissions.
It is convenient to consider each particular
as it was addressed, although I
have also had regard to the combination of all of these particulars.
- The
first particular is “The Tribunal found that the Applicant had given
inconsistent evidence in relation to his Falun Gong practice, namely that
‘he
stated that he practised once a week, and also once a day’, when
no such inconsistency existed”.
- It
was submitted that this finding was not supported by logical grounds or was
otherwise arbitrary, as no such statement was made
and no such inconsistency
existed. However, as discussed above in relation to ground two, the Tribunal
did not make a finding that
there was an inconsistency. Rather it found that
the applicant had provided few details of his practice of Falun Gong in China,
that some of those he did provide “appear to be
inconsistent” (emphasis added) and that in the absence of additional
information that would clarify “these apparent
inconsistencies” (emphasis added) it was unable to be satisfied
that the applicant was a Falun Gong practitioner in the PRC.
- The
Tribunal had regard to the manner in which these claims were made, which from
its summary could be seen as not necessarily relating
to the one point in time,
but was not satisfied either that this was the case or that the applicant had
explained the apparent inconsistency
in why he moved from being a once a week
practitioner to a once a day practitioner (even though it appreciated what he
had to say
about his headaches improving and becoming stronger). It has not
been established that the Tribunal finding of “apparent”
inconsistency was not supported by logical grounds or was otherwise
arbitrary or that there was any irrationality such as to demonstrate error on
the basis that there was no evidence to support this finding or no proper basis
for drawing an inference of an apparent inconsistency.
Nor has it been
established that the Tribunal misconceived the applicable test or that there was
otherwise a purported rather than
a real exercise of its power.
- The
second particular is that “The Tribunal found that the Applicant
provided few details about the benefits that practicing Falun Gong had brought
him, when the
Applicant had provided such details, being that his headache had
gone and that he had become stronger.”
- The
Tribunal finding that the applicant had provided “few
details” was not simply in relation to the benefits practising Falun
Gong had brought him. Rather the Tribunal found that he had provided
few
details about his practice or the benefits it had brought him and that he had
not provided sufficient details about the “theoretical basis and
specific beliefs peculiar to Falun Gong” to enable it to be satisfied
that he was a genuine and committed Falun Gong practitioner in the PRC.
- Notwithstanding
the applicant’s claim that his headache went and he became stronger, it
was open to the Tribunal to find that
such details the applicant had provided
about the benefits that Falun Gong had brought him could be described as
“few details”. The Tribunal did not find that the applicant
had provided no details in that respect. It has not been established that
this
aspect of the decision was irrational, illogical or not based on findings of
fact supported by logical grounds or otherwise
such as to constitute
jurisdictional error.
- The
third particular is “The Tribunal found that the Applicant had not
stated whether, after each the three (sic) occasions when he was arrested
in China for practising Falun Gong, he continued to practice Falun Gong, when it
was implicit after
at least the first two arrests that he had been practising,
or perceived by the authorities as practising, Falun Gong because he
and his
friend were told that if they did not give up Falun Gong they would go to
jail”.
- It
was contended for the applicant that logically it was clear that the applicant
had been practising or perceived by the authorities
as practising Falun Gong
after at least the first two of these occasions.
- Nonetheless,
it was accurate for the Tribunal to state that the applicant provided little
information about the difficulties he claimed
to have had with the authorities
because of his practice of Falun Gong and in particular that he had not provided
dates or the time
frame over which the claimed events took place or stated
whether he continued to practice Falun Gong on each occasion after he was
released. The fact that he may not have claimed to have been practising at that
time was apparent from his statement that he may
have been
“perceived” by the authorities as practising. There is no
irrationality or illogicality in the Tribunal’s finding as to the limited
amount of the information that the applicant provided. It was not required to
assume that the applicant must have continued to practise
Falun Gong because of
his failure to say whether or not that was the case.
- The
fourth particular is that “The Tribunal found that the Applicant had
not given any information about the circumstances in which he had decided to
leave China,
when the Applicant had stated that he was ‘forced by
the government in China’, that he ‘had to leave’ because he
is
a ‘Falun Gong member’”.
- In
his protection visa application the applicant did not explain precisely what it
was that led him to make the decision to leave
China at the time that he did.
It was correct for the Tribunal to state that he provided no information about
the circumstances
(in the sense of proximate circumstances) in which he decided
to leave the PRC. That this is what was in issue is consistent with
its
subsequent reference to whether the applicant was of particular interest to the
authorities at the time of his departure.
- It
is relevant in this respect that the delegate’s decision had raised the
issue of how the applicant obtained a Chinese passport
and managed to exit
China, notwithstanding country information in relation to passport and exit
procedures. The delegate referred
to the fact that the applicant had not
explained how he obtained a Chinese passport or an Australian visa or if he was
the subject
of investigation in China, how he was able to exit the country.
That the Tribunal was concerned about the absence of such information
is
apparent from the fact that it went on to refer to the fact that while the
applicant had stated that it was difficult to get a
passport, he had provided no
details of these difficulties or whether they were related to the practice of
Falun Gong. Again, no
lack of logic, let alone jurisdictional error, is
apparent in the Tribunal findings in this respect.
- The
fifth particular is:
- The
tribunal required the Applicant to explain why the police had not jailed the
Applicant for practicing Falun Gong after each occasion
when he was arrested and
released when:
- (a) it was
unreasonable for the Applicant to speculate why the police had not jailed him as
threatened; and or
- (b) the
Applicant had not claimed that the threat of being jailed if he did not give up
Falun Gong had been made after each arrest.
- It
was contended that it was unreasonable to require the applicant to assert what
was in the mind of the police officers and why they
did or did not lock him up
on each occasion when he was arrested. However, read in context, it is clear
that the concern of the
Tribunal was the fact that the applicant provided little
information in relation to the circumstances of his claim that he was taken
to
the police station three times or about what occurred on each occasion and
thereafter. The Tribunal’s description of particular
information that the
applicant did not provide as an example of the detail that was lacking is not
such as to constitute jurisdictional
error.
- The
last particular is as follows:
- The
Tribunal found that the Applicant had provided no information on whether he was
practicing Falun Gong in Australia when the Applicant
had provided such
information, stating that he can practice Falun Gong again (since his arrival in
Australia, being free), that he
is a ‘religious Falun Gong
practitioner’ and that if he was in China he ‘would keep practising
Falun Gong’
and that he ‘will keep practising Falun Gong’,
that he will ‘never give up’.
- It
was submitted that a natural reading of the applicant’s claims showed that
he was asserting that he was practising Falun
Gong in Australia. The use of the
present tense and the future conditional was also said to confirm that he was
practising in Australia.
- However
the applicant did not expressly state that he was practising Falun Gong in
Australia at the time of his protection visa application.
He did state that he
“can” practise and that he felt freedom in Australia, but he
did not give evidence that he was engaged in particular activities,
had attended
particular places or associated with particular people, as was of concern to the
Tribunal in this respect. Notwithstanding
his claims about his beliefs and
intentions, the Tribunal’s observations in this respect have not been show
to be irrational,
illogical or not based on findings or inferences of fact
supported by logical grounds.
- In
these circumstances, it is not necessary to consider further the extent to which
illogicality in reasoning constitutes or demonstrates
jurisdictional error. It
has not been established that the Tribunal has failed to consider any claim it
was jurisdictionally obliged
to consider. Nor has it been shown that there was
any irrationality or illogicality such that the Tribunal did not appreciate the
correct test or that it made findings that were not open to it on the material
before it in reaching its decision that it was not
satisfied that the criteria
for the grant of the visa for which the applicant had applied were met.
- As
no jurisdictional error has been established the application must be dismissed.
I certify that the preceding one hundred and fifteen (115)
paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 9 September 2008
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