SZMSD v Minister for Immigration & Anor [2009] FMCA 96 (24 February 2009)

Last Updated: 26 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSD v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 96

MIGRATION – RRT decision – Chinese applicant claiming persecution as Falun Gong supporter – Tribunal ignored a material witness statement given to the Department – possibly significant to Tribunal’s procedures and reasoning – jurisdictional error established – matter remitted.

Migration Act 1958 (Cth), ss.91R(3), 418(3), 426(3)

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 SZGDJ v Minister for Immigration & Citizenship & Anor [2008] HCASL 479 SZMBL v Minister for Immigration & Anor [2009] FMCA 44 SZMDC v Minister for Immigration & Anor [2008] FMCA 1282; (2008) 104 ALD 426 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Applicant:

SZMSD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2275 of 2008

Judgment of:

Smith FM

Hearing date:

5 February 2009

Delivered at:

Sydney

Delivered on:

24 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the First Respondent:

Ms S Sirtes

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 14 August 2008 in matter 0801638.
(2) A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 25 February 2008.
(3) The first respondent must pay the applicant’s costs in the amount of $3,000.
(4) The applicant must pay the first respondent’s costs thrown away as a consequence of the delay in giving notice of the amended grounds intended to be relied upon. Pursuant to r.21.02(2)(c), refer those costs to a Registrar for taxation under O.62.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2275 of 2008

SZMSD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant visited Australia between September and December 2006, to visit her daughter who was attending a school here. She returned on another tourist visa in August 2007. On 27 November 2007, her daughter assisted her to lodge an application for a protection visa. This was refused by a delegate on 25 February 2008, and the decision was affirmed by the Tribunal on 14 August 2008. I must now consider whether the Tribunal’s decision was affected by jurisdictional error, so as to permit me to remit the matter for further consideration. I do not have power myself to decide whether the applicant’s refugee claims are true, nor whether she qualifies for any permission to stay in Australia.
2. In a statement attached to the visa application, the applicant claimed that she “joined Falun Gong practice through the introduction of friends” during her 2006 visit to Australia. She took a Falun Gong book and music tapes back to China, and continued the practice with two friends, whom she taught. In March 2007, police “burst into the home” and discovered the applicant and her friend performing exercises. The applicant was detained and questioned in a most unpleasant manner “for solid 24 hours”. She was then released without further action being taken, although she had admitted breaching the law by bringing back a banned book. Her two friends were summoned for questioning two days later. The applicant then “went into hiding in the rural area” of another province, but gave the police her address after they visited her family. She later left for Australia, after finding a police summons under her door at the end of August 2007. She attached a copy of the summons. She said “after my arrival in Australia, I also joined the group Falun Gong practice in Belmore Park”, and she also had participated in Falun Gong protest demonstrations in Australia.
3. Her statement attached some photos of these activities, and a typed letter signed by Mr Li and dated 21 November 2007, which I shall refer to as “Mr Li’s first statement”. It said:
   • I, [Mr Li] is a Australia citizen. On September 2006, was the first time I met [the applicant] in the Belmore Park. I was practising Falun Gong with a group of members of Falun Gong. We practise Falun Gong everyday in the Belmore Park. [The applicant] was out of curiosity to came and have lots of question to ask us. In the end, I told her Falun Gong could get rid of disease and make the corporeity better. So she began to join us. [The applicant] start to practise regularly in November and she always came. In the beginning she holds the situation of ‘try’ and follow us to do. After one month, she told me she feels very well and freshness. But she has to go back to China in the December. Thus I gave a book and some of tapes about Falun Gong to her.
   • On the September 2007, [the applicant] came to Australia and joins us again. She still campaign Falun Gong, take part in giving newspaper and lots of activities of propagandize Falun Gong. [The applicant] has told us the experiences about she was inquest by the local police after she went back to China. We are all very commiserate her what she have faced with. All of us who are the members of Falun Gong encourage her bring forward the refugee application to the Australia Government.
   • Since [the applicant] practise Falun Gong, her disease was getting better day after day. This indicate Falun Gong have the supernatural impact. We hope Australia Government commiserate what the experiences [the applicant] have, so that make she get rid of the tyranny of China.
4. The applicant also submitted to the delegate, possibly at an interview on 12 February 2008, a second letter signed by Mr Li. This is dated 30 January 2008, and I shall refer to it as “Mr Li’s second statement”. It suggests that it was signed before a justice of the peace. It said, as to the applicant’s activities:
   • [The applicant] came to our Belmore Park to do practice from NOV to DEC in 2006. [The applicant] came to Australia again on 31 August 2007. In the September she was back to do practice. [The applicant] is a loyal member of Falun Gong, is Master Li’s unwavering adherent. [The applicant] has sent the newspaper of Eulogize and Develop Falun Dafa in Central Station every Wednesday. She still join our bedin and news conference of “deprecate the Chinese Government, oppose to persecute Falun Gong member” organize by Falun Gong.
   • I would like to prove for [the applicant] who is a veriest member of Falun Gong.
5. At times which are unclear, the applicant also submitted several other witness statements. It is common ground that all of them were probably on the file of documents which was transmitted to the Tribunal by the Department of Immigration. Mr Li’s two statements and three other witness statements found at Court Book pages 38, 53 and 55 appear to have been received before the delegate made her decision. So too was a supporting petition comprising three undated pages of signatures of ‘Falun Gong practitioners’ from the Darling Harbour and Cabramatta practice sites (Court Book pages 59, 60 and 61).
6. The delegate referred to this material in her statement of reasons:
   • The applicant has also provided documentation to support her claim to have practised Falun Gong in Australia between September and December 2006, and since her second entry into Australia in August 2007; these include photographs of the applicant attending various Falun Gong-related events (1: 1a, 82a) and letters of support from a large number of individuals attesting to the applicant’s participation in Falun Gong-related activities in 2006 and during her current visit to Australia (1: 3, 31, 80-82, 104-106). On the basis of the evidence of this evidence, I accept that the applicant did, in fact, attend various Falun Gong-related activities in Australia, both in 2006 and 2007-2008.
7. The delegate did not, however, accept the truth of the applicant’s claims about what had happened to her in China, nor that she had ever come to the adverse attention of the PRC authorities. She thought that the applicant’s delays in getting a second Australian visa, in using her visa to leave China, and in applying for protection, suggested that she was not in fear of arrest and mistreatment.
8. A further two supporting letters are stamped as received by the Department on 27 February 2008, the day after the delegate’s decision (see Court Book pages 97, 98). One of them is the subject of one of the grounds in the present application, and I shall refer to it as the “HL statement”. It is typed in English, and has a signature dated 22 February 2008:
   • I, HL, an Australia permanent resident. I know [the applicant] when she first time came to Australia in 2006. She is a Falun Gong practitioner. She always do practice with us. [The applicant] always makes stern demands of herself. She always send the information of Falun Gong and join the activities of Falun Gong in China Town. She also send the English newspapers of Falun Gong from 6 am to 10 am in Central Station. I still can see she is willing to take care and help the elderly members who have difficult in their life. Our Falun Dafa is practice “Truth, Compassing and Forbearance”. The reason why she can do these always because she is effect by Falun Dafa endows with purity, goodness and tolerance.
   • If you need further information, please so not be hesitated to contact me.
9. In the course of the Tribunal’s review, two additional such witness statements were submitted at different times. These are found at Court Book pages 125 and 172. In addition, a third statement signed by Mr Li was submitted after a hearing of the Tribunal at which he gave evidence, in circumstances which I shall describe below. The applicant concedes that all of these witness statements, except those of Mr Li and – debatably – HL, provided evidence only of the applicant participating in Falun Gong activities since her return to Australia in 2007, and did not corroborate her claim to have done this during her 2006 visit.
10. The applicant attended a hearing of the Tribunal which was held on 29 April 2008 between 11 am and 5 pm, and was then adjourned to 26 May 2008, when it lasted from 12 noon to 2 pm. Neither party has tendered a transcript of these lengthy hearings. However, the Tribunal provides a summary of what was said, from paragraphs [63] to [118] of its statement of reasons.
11. During the hearing, the applicant was clearly put on notice that the Tribunal did not assume, but was investigating, the truth of her claim that she had commenced to practise Falun Gong during her 2006 visit, notwithstanding that this had been accepted by the delegate. No submission to the contrary was made to me, and no ground is raised that there was a breach of fairness within the principles applied in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
12. The issue appears to have emerged at the start of the hearing, when the Tribunal took evidence from Mr Li. The Tribunal’s description of this is:
    • 63. At the RRT hearing, the Tribunal first spoke with [Mr Li], an elderly man, who is the author of the fourth statement discussed above. Mr Li said he cannot read or write English or Chinese. He told the Tribunal he dictated his statement. It is not clear to the Tribunal how he (or who) signed it. The signature is apparently falteringly made in Latin script.
    • 64. Mr Li said he had nothing to add to his statement. He said he could not remember to whom he had dictated his statement, or who had asked him to sign it. He said so many people apply for refugee status and that he could not remember one from the other.
    • 65. Mr Li said he first met the Applicant in 2007. The Tribunal notes from the Applicant’s passport that she was not in Australia in 2007 until 31 August.
    • 66. The Tribunal asked Mr Li if he could recall more accurately when he first met the Applicant and he said his memory was not so good. He said he had known her six or seven months. He said the season was neither hot nor cold. Going back seven months from the time of the first RRT hearing, Mr Li appeared to be suggesting [he] had only known the Applicant since the spring of 2007, say in September or October of that year.
    • 67. By contrast with this evidence, Mr Li had earlier said in his written statement to the Department that he first met the Applicant in November and December 2006.
    • 68. In her own evidence, the Applicant said that this same Mr Li was the person who, at the end of 2006, gave her the books and recordings to take back to the PRC when she returned there.
    • 69. During the part of the hearing when Mr Li was indicating that he first became acquainted with the Applicant in the second half of 2007, the Applicant began writing what appeared to [be] dates on a piece of paper. She wrote “2006” in large figures and circled one of them. She also wrote “11” which may have been a reference to “November”. She then appeared to try to tilt or move this piece of paper towards Mr Li. The Tribunal stopped her and asked for her to hand over the piece of paper which it has retained on file.
    • 70. The Tribunal later asked the Applicant what she had been doing at this point and she said she had just been writing the note to herself, out of concern for the fact that Mr Li appeared to have forgotten the true date of their first acquaintance. The Tribunal asked the Applicant if she had been trying to influence Mr Li’s evidence, and she said he did not even recognise characters such as his own name. The Tribunal put to the Applicant that she mainly wrote numerals on the paper. In response she said she just wrote them.
13. The Tribunal’s reference to “the fourth statement discussed above” appears to be to its description of the material which it received from the Department’s file. This was:
    • 56. The Applicant submitted four witness statements to the Department.
    • 57. The first statement, dated 30 January 2008, is from [Mr Li], a Falun Gong practitioner since 1998, who claims to have first met the Applicant when she came to Belmore Park in November and December 2006, i.e., during her first visit to Australia. Li states that the Applicant rejoined the group in September 2007. Mr Li later gave oral evidence to the Tribunal on 29 April 2008. He also made a further submission to the Tribunal in June 2008.
    • 58. The second statement, also dated 30 January 2008, is from [CH], also a practitioner since 1998, who claims to be the leader of the study group in Cabramatta and who asserts that the Applicant first joined that group in September 2007.
    • 59. The third letter, dated 23 January 2008, is from [RR] who states that the Applicant practices Falun Gong in Belmore Park from Mondays to Fridays, from 10:00am to noon.
    • 60. The fourth statement is from Ms [YZ] (who attended the first RRT hearing with Mr Li). Written in English and dated 30 November 2007,[Ms YZ]’s statement asserts that the Applicant always practices with her group and participates in Falun Gong group activities such as pageants and other things.
14. It is possible that the Tribunal’s reference to Mr Li’s statement at [57] confused the contents of both of Mr Li’s statements to the Department, or assumed that one statement was submitted twice in the terms of the second statement. However, Mr Li’s first statement, in fact, said that he met the applicant “the first time” in September 2006, not November 2006. Mr Li’s second statement said, as did his first statement, that she “came to our Belmore Park to do practice” from November to December 2006. The Tribunal appears to have taken note only of this information, and inferred that Mr Li claimed in his second statement to have “first met” the applicant in November. This suggests that it overlooked his first statement. Moreover, the Tribunal gives the date only of the second statement. As I shall explain, there are also other reasons for thinking that the Tribunal overlooked Mr Li’s first statement. After discussion of these points with counsel, it became common ground that the Tribunal at [57] probably referred only to Mr Li’s second statement, and I consider that this is the preferable finding.
15. It is also common ground that the Tribunal at [63] probably intended to refer to the statement of Mr Li which it identified at [57], being his second statement dated 30 January 2008 which I have extracted above. These parts of the Tribunal’s statement of reasons give strength to the applicant’s submissions to me, that at the first hearing the Tribunal overlooked the existence in the Department’s files of Mr Li’s first statement, and questioned him only about his second statement.
16. There is no evidence suggesting that the Tribunal became aware of this error before or during the resumed hearing, although the reliability of Mr Li’s evidence was again raised at its commencement. According to the Tribunal:
    • 100. At the second hearing, on 26 May 2008, the Applicant intended to present her two witnesses again, advising the Tribunal that they wished to explain why they could not remember some details about their acquaintance with her. The Tribunal declined to take oral evidence from the witnesses again, but did not rule out considering further written statements.
    • 101. At the resumed hearing, the Applicant was vague as to how Mr Li’s statement of 30 January 2008 was translated into English. She talked about a “person responsible” but appeared either unable or reticent to say who that person was or might be. She told the hearing that she told the person responsible what happened to her in 2007. She said she did not know the identity of the person responsible. She then said that Mr Li took charge and gathered his and the other practitioners’ statements. When asked who translated Li’s statement, she did not say.
    • 102. The Tribunal informed the Applicant that on the information presented so far, and subject to information she might yet provide, it might draw negative inferences as to the good faith of the process by which Mr Li’s 30 January 2008 statement came into existence, and that this might be part of the reason for not accepting her overall claims.
    • 103. Electing to respond immediately, the Applicant said she asked Li if he could help her and that a few days later he handed her the 30 January 2008 statement.
    • 104. The Tribunal put to the Applicant that in his written statement, Li said he had known her since 2006 but when asked directly at the hearing, he gave evidence about first having met her in 2007 (which could only have been after she returned here from the PRC). The Tribunal disclosed the potential implications, being that it might not give weight to Li’s testimony, with the potential effect being that it r [sic] not accept her overall claims. Electing to address the concern immediately, the Applicant said she first met Li in November 2006 when she had nothing to do and saw him exercising in she implied was Belmore Park. She said she later told him she was returning to the PRC and that he gave her some books. She said that even later she told him she was applying for protection in Australia and that he gave her a supporting statement. She said he is old and could not recall everything at the 29 April 2008 hearing.
      • (emphasis in original)
17. Ground 1 of the amended application before me challenges the Tribunal’s refusal to allow Mr Li to be recalled. However, I have not found it necessary to decide this ground. It faces difficulty, in view of the wide procedural discretion given to the Tribunal by s.426(3) of the Migration Act 1958 (Cth), in relation to calling and re-calling a witness to give oral evidence. The applicant also has difficulty establishing that relevant considerations were not considered by the Tribunal, particularly in the absence of a transcript of what was actually said by the Tribunal, and the absence of an obligation on it to provide full reasons for a procedural decision.
18. After the second hearing, the applicant submitted a third typed statement signed by Mr Li, which was witnessed by a justice of the peace. It is dated 30 May 2008, and stated:
    • My name is [Mr Li]; I’m a principal in Belmore Park which practises Falun Gong. I knew [the applicant] on NOV 2006. In that time I taught her practise and gave her two types and a book of Falun Gong. Because of my memory is not very good. On the 29th APR 2008 in RRT, I made a mistake said I knew [the applicant] in 2007. In fact, it’s in 2006.
    • If you need further information, please so not be hesitated to contact me.
19. The applicant contends in Ground 2 of her amended application that the Tribunal continued to fail to appreciate that Mr Li had given two statements to the Department, and to overlook the contents of the first statement, when it came to decide the matter. It is argued that this error related materially to its reasons for disbelieving the applicant’s refugee claims, and for affirming the delegate’s decision.
20. In my opinion, the materiality of the Tribunal’s assessment of such of Mr Li’s evidence as it considered, is clear. It was given a crucial place in the Tribunal’s reasoning, which concluded that the applicant only involved herself in Falun Gong activities after returning to Australia in 2007. From the foundation of this finding, the Tribunal rejected the entire truth of the applicant’s claims to have suffered persecution after returning to China as a committed Falun Gong practitioner in possession of Falun Gong materials. The finding also supported its conclusion that the applicant commenced her 2007 involvement in Falun Gong “in order to create the basis for, and strengthen, her claim to a protection visa”, and that it was obliged to disregard that conduct pursuant to s.91R(3) of the Migration Act.
21. The Tribunal’s reasoning concerning Mr Li’s evidence was:
    • 144. The evidence suggesting that the Applicant became interested in Falun Gong and involved with a Falun Gong group prior to returning to the PRC in December 2007 is inconsistent and unreliable.
    • 145. Mr Li’s first statement says he first met the Applicant in November 2006 but evidence as to how that first statement came to light has given the Tribunal much concern. The Tribunal is not satisfied that Mr Li was aware, to any practical or significant extent, of the contents of that statement, due to his illiteracy, and due to the vague and contradictory claims from Mr Li and the Applicant as to how he came to provide the statement. It is fairly clear he never vetted the final draft. The Tribunal gives no weight to the allegation about Mr Li supposedly having been coerced into making his original statement, particularly since he was prepared personally to attend two hearings in support of the Applicant. However, the Tribunal gives no weight to Mr Li’s first statement in which he claims to have first met the Applicant in November 2006.
    • 146. Even allowing for the agedness of the witness Mr Li, and for his and Ms [YZ]’s memories to be incomplete or imperfect, and even after considering later submissions seeking to explain memory deficiencies, the Tribunal finds that it cannot rely on the witnesses’ claims about having first become acquainted with the Applicant at any stage prior to September 2007, which was during her second visit to Australia. The Tribunal is greatly concerned at the Applicant’s efforts, at the first hearing, to prompt Mr Li to say “November 2006” during the hearing of his oral evidence. The Tribunal does not accept that the Applicant became acquainted with her witnesses prior to September 2007.
    • 147. Ultimately there is no consistent, reliable evidence of the Applicant having become acquainted with Falun Gong practitioners in Australia until September 2007, which was during her second visit to Australia and therefore after the eight-month sojourn in the PRC during which she claimed to have got into trouble with the authorities over Falun Gong matters.
    • 148. The Tribunal does not accept on the evidence before that the Applicant became involved in Falun Gong until after she came to Australia on 31 August 2007.
      • (emphasis in original)
22. The issues raised by Ground 2 of the amended application which were debated before me, in so far as it concerns Mr Li’s first statement, were:
    1. was the Tribunal aware of, and did it consider, Mr Li’s first statement before making its decision?
    2. if it overlooked the statement, was this error a jurisdictional error?
    3. if it was jurisdictional, was the error immaterial to the Tribunal’s reasoning and conclusion, so that relief should be declined?
23. The jurisdictional error which is relied upon, has been described in the High Court as that of ‘ignoring relevant material’. In a well known passage in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said at [82]:
    • 82 It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
      • “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”.
    • “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
    • (citations omitted)
24. The error of ‘ignoring relevant material’ is related to the jurisdictional error of ‘failing to take into account a relevant consideration’, which was explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 and following. However, as their Honours in Yusuf suggested at [74], the latter is more concerned with how a decision-maker has identified legal and factual issues which were required to be addressed when the relevant legislation is applied to the particular matter for decision, than with “the process of making the particular findings of fact upon which the decision-maker acts”.
25. In relation to a decision-maker’s consideration of the evidence, it is well established that no jurisdictional error occurs, if the decision-maker makes a ‘mere’ error of fact when considering or weighing a piece of evidence in the course of deciding an issue of fact or law arising in the matter (cf. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [52]- [54] and [68]). Moreover, the Full Court has warned against drawing an inference that either an issue has been overlooked, or that evidence was overlooked, merely because a piece of evidence was not expressly discussed in the course of a decision-maker’s stated reasons, since “it is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons” (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46]). However, an error in the assessment of a material piece of evidence is one thing, and failing to be aware of evidence which is material to the decision, and of which the decision-maker should be aware, is another.
26. The jurisdictional error of ‘ignoring’, or failing to be aware of, or totally disregarding, relevant evidence has been traced to a general duty implicit in a statutory power of decision, that the decision-maker “is required to make his decision on the basis of material available to him at the time the decision is made” (see Mason J in Peko-Wallsend (supra) at 45, also Gibbs CJ at 30, Dawson J at 71, Brennan J at 67 and Deane J at 70).
27. It has been suggested that a statutory duty to be aware of the evidence submitted by an applicant is subject to a qualification that the evidence is material to the issues to be decided and is not ‘insignificant or insubstantial’ (cf. Gibbs CJ in Peko-Wallsend (supra) at 31). To the same practical effect, are suggestions that the materiality and significance of allegedly overlooked evidence should be considered, before drawing conclusions from the decision-maker’s reasons as to whether, in fact, the decision-maker was unaware of, or uninformed as to, that evidence (cf. Sackville J in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at 165 and following). These tests also come into play at a discretionary level, since relief will be refused if the Court is satisfied that the overlooking of evidence was of no possible significance to the decision which was made (cf. SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28]- [29], [55]-[59], [91], Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at [85]- [86]).
28. In the present case, I have considered the need to be cautious before concluding that the Tribunal overlooked a piece of evidence which was in the documents which the Secretary forwarded as “relevant to the review” pursuant to s.418(3) of the Migration Act. I must also read the Tribunal’s statement of reasons so as to give it the benefit of doubts (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 277 and 291). However, the Tribunal was under a statutory duty both to be aware of those documents, and to include in its statement of reasons its findings on what it thought was the material evidence. An inference can be drawn, if appropriate, from the absence of reference to significant evidence forwarded by the Department, that it was overlooked (see Yusuf (supra) at [10], [35], [69], and [75]).
29. On the evidence before me, I have concluded that the Tribunal probably did overlook, and for that reason totally disregard, Mr Li’s first statement, and did so throughout its consideration of the matter. This conclusion is based upon the following factors:
    1. The Tribunal’s statement of reasons, including its recitation of evidence, makes no mention of the statement.
    2. As I have found above, and is now common ground, the Tribunal’s list of “witness statements to the Department” does not refer to the first statement, and it describes Mr Li’s second statement as “the first statement” of four statements from different witnesses.
    3. Although a transcript of the first hearing is not in evidence, the Tribunal’s description of the hearing clearly suggests that it questioned Mr Li only about the contents and making of his second statement, and not about his first statement. Moreover, its questioning appears to have proceeded upon a false assumption, which was never dispelled, that Mr Li had given and signed only one statement. Only one statement is referred to as the subject of its questioning, and the Tribunal’s reasons – correcting one patent mistake – should be read as indicating that this was his second statement.
    4. The Tribunal declined to allow Mr Li to be recalled to clarify his evidence given at the first hearing.
    5. At the second hearing, from the Tribunal’s description at [101], it questioned the applicant only about the making of Mr Li’s second statement, which is identified by reference to its date “of 30 January 2008”. It put to her that “it might draw negative inferences as to the good faith of the process by which Mr Li’s 30 January 2008 statement came into existence”. This suggests that at that time it was still overlooking Mr Li’s making of an earlier statement, and the possibility that the witnesses might have been confused because its questions assumed that there was only one statement.
    6. Mr Li’s subsequently submitted third statement did not alert the Tribunal to its mistake, and the Tribunal incorrectly referred to it at [123] as “the second written statement from [Mr Li] ... dated 30 May 2008”. Although, that statement does not, in fact, assert that he “first met” the applicant in November 2006, the Tribunal appears to have thought that it did this, from its statement that “I knew [the applicant] on NOV 2006”. It does not appear to have been aware that this would involve reading the third statement inconsistently with the first statement.
    7. The Tribunal’s continued overlooking of the first statement up to the time of its decision, is confirmed in its ‘Findings and Reasons’ at [145], where it stated: “Mr Li’s first statement says he first met the Applicant in November 2006 but evidence as to how that first statement came to light has given the Tribunal much concern”. In the light of the previous references in the Tribunal’s reasons, this can only indicate that it erroneously believed that Mr Li’s second statement was his “first statement”, and that he had made no earlier statement which was given to the Department.
    8. In the light of the Tribunal’s express, and mistaken, references to Mr Li’s statements, I am not persuaded by the Minister’s submission that I should understand both statements to have been encompassed in the Tribunal’s opening statement at [26] that “the Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources”. This paragraph comes from a template which is commonly used by the Tribunal, and in the present case I prefer the Tribunal’s later statements which indicate that, in fact, it probably overlooked the contents and making of Mr Li’s first statement.
30. I have above explained the materiality to the Tribunal’s conclusions of its assessment of Mr Li’s evidence, in so far as the Tribunal took it into account. In particular, this is shown because its rejection of his claim to have a recollection of participating in Falun Gong practice with the applicant during her 2006 visit, depended upon its opinion that he and the applicant responded to its questioning with “vague and contradictory claims ... as to how he came to provide the statement”, and that “it is fairly clear he never vetted the final draft”. It then gave no weight to “Mr Li’s first statement in which he claims to have first met the Applicant in November 2006”.
31. In my opinion, in the face of this reasoning it is impossible to conclude that the Tribunal’s overlooking of Mr Li’s actual first statement did not concern a material and potentially significant piece of evidence. If the Tribunal had been aware of it at both hearings, its questioning of all the witnesses might have been significantly different. Without a transcript, I am unable to conclude positively that Mr Li or the applicant were questioned in a misleading fashion as a result of its misapprehension. However, it is quite possible that their responses might have been, or appeared, less unpersuasive, vague and contradictory if it had appreciated that Mr Li had, in fact, given and signed two statements. It is quite possible that their evidence might have better satisfied the Tribunal, if they had not been questioned about the making of Mr Li’s second statement upon a factually incorrect premise.
32. Moreover, Mr Li’s first statement gave a clearer picture than his second statement, of a history of contact with the applicant during a visit to Belmore Park in September 2006, followed by the commencement of participation in exercises from November to December 2006. The first statement was given three months earlier than the second statement. It is quite possible that the Tribunal might have found it to be more persuasive evidence than the second statement, read alone or in combination. Any possible inconsistencies between the two statements, or in Mr Li’s oral evidence, would then have been put to Mr Li, and might – I do not know – have been satisfactorily explained.
33. The material effect on the Tribunal’s decision therefore arises not only from the failure to consider the contents and making of the first statement when the Tribunal came to make its decision, but from the possible effects on its having previously conducted the proceedings under a misapprehension. If, for example, the Tribunal had appreciated its mistake after both hearings, but before it made its decision, it would probably have reconsidered its decision not to recall Mr Li, and may well have done this. The evidence ultimately before the Tribunal would then have been different.
34. In this situation, I am not persuaded by the submission of the Minister’s counsel that the Tribunal’s overlooking of the first statement could not have had any adverse consequences. She argued that at the second hearing the applicant’s evidence was that “she first met Li in November 2006” (see [104] in its statement of reasons), and that the applicant did not claim to have met him two months earlier, and before commencing to practise in November 2006. She argued that, if the Tribunal had considered Mr Li’s first statement, it would have identified a contradiction in the applicant’s evidence, which would have been regarded as adversely affecting the credibility of both witnesses. An awareness of Mr Li’s first statement could not, therefore, have been at all material in advancing the acceptance of the applicant’s claims.
35. However, this argument involves speculations about the reasoning of the Tribunal if it had not decided the matter upon a misapprehension as to the existence of potentially significant evidence. As I have explained, this misapprehension affected the process followed by the Tribunal, as well as its reasoning. It is clear from [66] and [67] that one perceived inconsistency in Mr Li’s oral evidence which undermined its acceptance, was that he had a memory of first meeting the applicant in a month of spring, other than November, and was not definite about the year. This was consistent with the month given in his first statement, and not inconsistent with the second statement if it is read in the light of the first statement. I am therefore not prepared to conclude that the Tribunal would have arrived at the same conclusions if it had appreciated the existence of Mr Li’s first statement, and had considered its contents.
36. This is a case where I am left in the same position as the Full Court in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [79]:
    • While it is impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different if the error about the UNP Letter had not been made, or had been corrected, it is not possible to say that the error could not have affected the outcome.
37. As in that case, I am satisfied that a jurisdictional error occurred because the Tribunal ‘ignored’ a potentially significant piece of evidence submitted by the applicant, and I am not satisfied that a discretionary reason arises to cause me to refuse to grant relief to the applicant by way of writs of certiorari and mandamus.
38. My conclusion concerning the Tribunal’s overlooking of Mr Li’s first statement means that I do not need to decide a separate element in Ground 2. This concerns the HL statement, which was also argued to have been overlooked by the Tribunal. This contention is problematic, because that statement does not, in its terms, provide evidence that HL observed the applicant to be involved in Falun Gong activities in 2006. It only stated that its signatory “know [the applicant] when she first time came to Australia in 2006”, and speaks in the present tense as to knowledge of the applicant’s Falun Gong activities. Counsel for the applicant appeared to concede that a material jurisdictional error could not be established, if it were open to the Tribunal to have treated HL’s letter as having no greater significance than other documents supporting the applicant’s 2007 involvement in Falun Gong. He made the same concession in relation to the letter of YZ, which is also particularised in Ground 2 as having been overlooked.
39. Grounds 3 and 4 also do not need to be addressed by me. Ground 3 contends that the Tribunal should have made inquiries with HL, and Ground 4 contends breaches of s.91R(3) of the Migration Act. My short opinion is that they both fail for the same reasons which I gave when addressing similar contentions made by the same counsel in SZMBL v Minister for Immigration & Anor [2009] FMCA 44 at [85]-[87] and [94]-[95].
40. A second wing of Ground 4 argued that a breach of s.91R(3) also occurred in the Tribunal’s reasoning at [154], where it relied upon its finding that the applicant did not have contact with Falun Gong during her 2006 visit. In my opinion, this cannot succeed in this Court, by reason of the authorities which I explained and followed in SZMDC v Minister for Immigration [2008] FMCA 1282; (2008) 104 ALD 426 at [22]- [27]. These allow the Tribunal to rely upon its findings about conduct in Australia, if the conduct found by the Tribunal was not presented by an applicant in support of her refugee claims. The authorities seem to have gained the support of the High Court in the course of a special leave determination (see SZGDJ v Minister for Immigration & Citizenship & Anor [2008] HCASL 479 at [5]).
41. However, the applicant succeeds in relation to Ground 2. It is agreed that costs should be awarded to the applicant as a consequence, in an amount specified by the Court.
42. The Minister has applied for an order for his legal costs incurred as a result of the applicant’s failure to plead the ground of review which I have upheld, until very shortly before the hearing. The ground was not discernable in the application originally filed by the applicant. She did not file an amended application in accordance with my directed timetable, which allowed this before 28 November 2008. The present amended application was filed at the hearing by leave, and was first foreshadowed as an attachment to counsel’s written submissions which were filed on 22 January 2009. Counsel’s intended appearance had been noted at the first court date on 30 September 2008. I was informed that the Minister had incurred additional expenses, because redundant legal advice was obtained and written submissions were drafted, concerning the earlier pleaded grounds.
43. I accept that the Minister should be awarded, and given an opportunity to quantify, any additional legal expenses which would not otherwise have been incurred if the applicant had given notice of her grounds of review in a more timely manner.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 24 February 2009