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SZNWA v Minister for Immigration & Anor [2010] FMCA 21 (25 January 2010)

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SZNWA v Minister for Immigration & Anor [2010] FMCA 21 (25 January 2010)

Last Updated: 27 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWA v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of decision of Refugee Review Tribunal – applicant on notice as to determinative issues – Tribunal did not fail to enquire – no denial of procedural fairness – no jurisdictional error – application dismissed.


SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
SZHZD v Minister for Immigration & Anor [2008] FMCA 4
SZHZD v Minister for Immigration and Citizenship [2008] FCA 1200
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106
in Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18
Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
Minister for Immigration and Citizenship v Le [2007] FCA 1318
Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
MZXTZ v Minister for Immigration & Citizenship [2009] FCA 888
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR; [2007] HCA 35
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83

Applicant:
SZNWA

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 2041 of 2009

Judgment of:
Nicholls FM

Hearing date:
1 December 2009

Date of Last Submission:
15 December 2009

Delivered at:
Sydney

Delivered on:
25 January 2010

REPRESENTATION

Counsel for the Applicant:
Ms K Welshman

Solicitors for the Applicant:
Austin Haworth & Lexon Legal (Sydney)

Appearing for the Respondents:
Mr A Markus

Solicitors for the Respondents:
Australian Government Solicitors

ORDERS

(1) The application made on 25 August 2009, and amended on 1 December 2009, is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $4,600.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2041 of 2009

SZNWA

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. This is an application made on 25 August 2009 under the Migration Act 1958 (Cth) (“the Act”), and amended on 1 December 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

  1. The applicant is a citizen of the People’s Republic of China (“China”). She arrived in Australia on 2 November 2008 and applied for a protection visa on 14 November 2008 (Court Book – “CB” – CB 1 to CB 39, including a statement by the applicant in support of her application). She was assisted in completing the relevant form (CB 10) by her migration agent (CB 37).

Claims to Protection

  1. The applicant’s claims to protection were that her parents were both Christians, and that, following the death of her mother in 2005, she joined her mother’s Church. In July 2008, police raided the applicant’s home during a service, questioned the participants and took them to the police station. The applicant was detained for 15 days: “... on the ground I provided place for illegal gathering and practiced religion illegally” (CB 29).
  2. She was released but warned not to attend the “home church again” or she would be gaoled. She hid with a friend in Wuhan on release. She appointed an agent to assist her to come to Australia to seek refuge.

The Delegate

  1. The delegate was not satisfied that the applicant was persecuted by Chinese authorities for religious reasons, and doubted both the credibility of the applicant’s claims, and the genuineness of her fear for Refugee Convention reasons. The delegate found the applicant’s statements to be vague and lacking in detail, and that the applicant contradicted herself on many points (CB 56).
  2. The delegate also found that the applicant’s lawful departure from China, on a valid passport and without attention from the authorities, was: “... a strong indicator that her claimed detention and involvement in an underground Christian church is unlikely to have been known to the PRC authorities” (CB 56).
  3. Further, the delegate considered that the failure of the applicant to claim asylum in New Zealand, the first point of arrival after leaving China, further indicated that her claim to be escaping from harm in China was not genuine (CB 56). The delegate was not satisfied that the fear of harm was well-founded, and did not consider there to be more than a remote chance of persecution should she return to China. The delegate also considered that the applicant could safely relocate within China (CB 57).

The Tribunal

  1. The applicant applied for review on 4 March 2009 (CB 59 to CB 62). She appointed the same migration agent to represent her (CB 60).
  2. The applicant attended a hearing before the Tribunal on 13 May 2009. A witness also gave evidence on her behalf (CB 67).
  3. The Tribunal was not satisfied that the applicant was a member of an underground Church in China, or that she was a victim of persecution. The Tribunal concluded that the applicant was not a reliable witness. The Tribunal was not satisfied that the applicant practiced Christianity, that she was detained, or that she was ill-treated. Finally, the Tribunal was not satisfied that the applicant had fled to Australia because she feared persecution ([56] to [57] at CB 88 to CB 89).
  4. The Tribunal accepted that the applicant had been attending Church since her arrival in Australia. However, it found that this attendance was for the purpose of strengthening her claim to be a refugee, and disregarded this conduct pursuant to s.91R(3) of the Act ([58] at CB 89).
  5. Ultimately, the Tribunal was not satisfied that there was a real chance the applicant would suffer serious harm on return to China for religious reasons, or that the applicant had a well-founded fear of persecution for a Convention reason ([59] to [60] at CB 89).

Before the Court

  1. At the hearing before the Court Ms K Welshman of counsel appeared for the applicant. Mr A Markus appeared for the first respondent.
  2. Ultimately, leave was granted for the applicant to file an amended application in Court. The grounds, with particulars, are:

The Evidence

  1. Leave was granted for the affidavit of Renee Quinn, managing director of “APT Translations”, made on 27 October 2009, annexing a transcript (“T”) of the hearing before the Tribunal, to be read into evidence before the Court (no objection taken).
  2. The applicant also sought leave in relation to the affidavit of Mr Gangliang George Li, solicitor, made on 17 November 2009, annexing a copy of a “Penalty Notice” (“Decision on Administrative Penalty Guantang Town Police Station, Chibi City Bureau of Public Security”) in the “Chinese” language and a copy of a translation in the English language.
  3. Mr Markus objected as to relevance. I granted leave for the affidavit to be read subject to relevance being established.
  4. Ms Welshman also sought leave for the applicant’s affidavit made on 17 November 2009 to be read into evidence. The affidavit also annexed a copy of the Penalty Notice, with English translation.
  5. The thrust of the applicant’s evidence was that her husband had sent this notice to her migration agent in February 2009. The applicant instructed her agent to send it to the Tribunal. At a meeting in her office the agent told her that she had done so.
  6. When the applicant attended at the Tribunal hearing (13 May 2009) she believed that the Tribunal had a copy of the Penalty Notice. The applicant’s evidence was that she first became aware that the Tribunal did not have the Penalty Notice when the Tribunal’s decision was explained to her. Further, that she did not understand from the questions put to her by the Tribunal that the Tribunal did not have the Penalty Notice.
  7. Mr Markus objected to the affidavit on the grounds of relevance and a failure to comply with Rule 15.27(2) of this Court’s Rules relating to the need to certify as to the translation of this document (subsequently not pressed).
  8. Mr Markus cross-examined the applicant.
  9. The applicant was asked to confirm her assertion that she did not understand from the questions asked at the Tribunal hearing, that the Tribunal did not have the Penalty Notice.
  10. In response she asserted that she had difficulty in understanding the interpreter. This was in spite of agreeing that she told the Tribunal that she had no such difficulty. Her relevant evidence was that she told the interpreter during a “recess” to “speak slower”.
  11. The applicant confirmed in her evidence that her migration agent had told her that documents, such as the Penalty Notice, could be of assistance before the Tribunal. Her evidence was that her husband “faxed” the document to the migration agent. She was subsequently shown the document by her agent. She was not given a copy.
  12. The applicant appeared to have some difficulty in answering a question as to whether she recalled telling the Tribunal that her husband had “faxed” the Penalty Notice to her. The applicant was also taken to the transcript (“T”) of the Tribunal hearing and referred to T26 (Q268 to Q269 at T27):
  13. The applicant was also referred to Q270 (T27) to Q287 (T28) and insisted she did not understand from the Tribunal’s questions that the Tribunal did not have the Penalty Notice before it. (See further [144] below.)

Ground One

  1. Ground one of the amended application contends that the Tribunal denied the applicant procedural fairness at the hearing pursuant to s.425 of the Act. The applicant relies on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 (“SZBEL”) to assert that the Tribunal failed to give the applicant a sufficient opportunity to give evidence or make submissions about the determinative issues in the review.

The Applicant’s Submissions

  1. The applicant particularises this complaint with reference to the following:
  2. Ms Welshman submitted that the applicant did not press particular (iv) to ground one. The remainder, however, were said to be issues in relation to the review, which were determinative in disposing of the application, yet were not identified as issues in the delegate’s decision, and were not raised by the Tribunal at the hearing such that the applicant could give evidence or make submission in relation to these issues.
  3. Ms Welshman relied on SZBEL, particularly at [32], to submit that the Tribunal did not take any step to identify these four remaining issues at the hearing. That they were not issues identifiable (“not obviously... open on the known material”) as arising as a result of the delegate’s decision, and the Tribunal’s failure to put the applicant on notice was, therefore, a failure to accord procedural fairness pursuant to s.425 (see also Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at [30]).
  4. Issue (i) is said to be that the Tribunal found the applicant’s account that a gathering of 20 people occurred (at a particular religious gathering) to be implausible. Ms Welshman made reference to the three dot points set out at [56] (CB 88) of the Tribunal’s decision record. The first dot point concludes with:
  5. Ms Welshman referred relevantly to T17 to T24 (Q163 and following), where the applicant’s account of the religious gathering in China was given to the Tribunal at the hearing. The submission was that, in its analysis, the Tribunal asserted (as set out above) that if the gatherings were of that size they would not have gone unnoticed by the Chinese authorities. The applicant’s complaint is that that “assumption” was not put to the applicant.
  6. Further, while the delegate did generally express concerns about the lack of “proof”, and also the credibility of some specific aspects of the applicant’s claims (see CB 56 to CB 57), that there was nothing in the delegate’s decision that would have put the applicant on notice that her account of the religious gatherings was implausible because gatherings of more than 20 people would not go unnoticed by the authorities.
  7. Particular (ii) asserts that another issue in the review was that the Tribunal did not believe that the applicant was detained as she had claimed because the Penalty Notice had not been provided to the delegate or the Tribunal.
  8. Ms Welshman submitted that the applicant’s account of her detention was not “specifically” doubted by the delegate (see CB 56 to CB 57). That there was no mention specifically about the Penalty Notice.
  9. The Tribunal relied on the absence of the Penalty Notice to find that the applicant was not detained as claimed (see [56] at the second dot point at CB 88). Yet, Ms Welshman submitted, although the Tribunal did ask “more detailed” questions at the hearing about what happened during her detention, and about the Penalty Notice, that none of its questions at the hearing (see T24 to T28) identified the issue that her account of the detention was in doubt specifically because she did not produce the Penalty Notice.
  10. Particular (iii) asserts that the issue which the Tribunal failed to put on notice to the applicant was that it did not believe the applicant was ill-treated, presumably while in detention.
  11. Ms Welshman submitted that there is no reference in the delegate’s decision to the applicant’s treatment while in detention. Further, that while the Tribunal asked the applicant to expand on her account of having been ill-treated in detention (see T24 to T26), it did not put to her that it doubted that she had been ill-treated.
  12. Particular (v) asserts that the Tribunal did not believe that the applicant had fled to Wuhan after the claimed incident in July 2008 (see [57] at CB 89).
  13. Again, the submission was that the flight to Wuhan was not raised in the delegate’s decision. Again, while the flight to Wuhan was discussed at the Tribunal hearing (see T31), it was never put to the applicant that the Tribunal had doubts that she had fled there, or had doubts that she had fled there because she feared persecution.

The Minister’s Response

  1. Mr Markus submitted in reply that the current case falls into the category of cases where, as a result of the delegate’s decision and the Tribunal’s statements and questions at the hearing, there was “sufficient’” indication to the applicant that everything she said in support of her application was at issue.
  2. The Minister relies on SZBEL at [47]:
  3. Mr Markus submitted that in the current case there was a comprehensive adverse credibility finding made by the delegate in rejecting all relevant aspects of the applicant’s claims. That on this basis, therefore, the applicant was on notice that she may not be believed in relation to any aspects of her claims.

Consideration: Ground One

  1. The applicant has identified four specific and detailed matters which she says are “issues” in relation to the review. The complaint is that the Tribunal’s doubts about the credibility of each of these matters was determinative of the review, yet were not matters arising from the delegate’s decision, nor were the Tribunal’s doubts put to the applicant at the hearing in relation to each of these issues. In these circumstances, the Tribunal denied the applicant procedural fairness pursuant to s.425 of the Act.
  2. The level of matter, involving a degree of specificity, described as an “issue” by the applicant raises the interesting question as to what exactly is an “issue” in relation to the review for the purposes of s.425, and as explained in SZBEL.
  3. The term “issue” is not defined in the Act. However, in my view, the guidance given by the High Court in SZBEL would say that an “issue” is to be determined with reference to the circumstances of each case, and “issues” are to be characterised as those matters which are determinative or dispositive of the review.
  4. The question is given further dimension by what the High Court said in SZBEL at [49]:
  5. I note that the question as to what may be an “issue” for these purposes was considered by Barnes FM in SZHZD v Minister for Immigration & Anor [2008] FMCA 4 (“SZHZD”) (upheld on appeal: SZHZD v Minister for Immigration and Citizenship [2008] FCA 1200) (see generally [27] to [67] and, in particular, [34] to [43] as to the matter of “issue” in this context, and the Tribunal’s relevant obligation). I respectfully agree with her Honour’s analysis of the approach to be taken to discern what relevantly is an “issue” for the purposes of s.425(1). On this matter, I also draw guidance from what was said in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 (“SZJUB”) per Bennett J.
  6. In SZBEL, the High Court endorsed what was said in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 (see SZBEL at [25]) as to what is required by procedural fairness, and further endorsed what was said in Alphaone [1994] FCA 1074; (1994) 49 FCR 576 at 590-591, and see SZBEL at [32]:
  7. However (see SZHZD at [34]-[35]), since the introduction of s.422B of the Act (which also applies in the current case) what must be addressed is whether there has been a breach of one of the statutory requirements in Division 4 of Part 7 of the Act. In this case obviously s.425. In that context, the High Court in SZBEL emphasised the “statutory scheme,” (see SZBEL at [33] to [38], in particular), and that in the context of s.425 what must be borne in mind is the question of whether the Tribunal has fulfilled the requirement to invite the applicant to appear before it to give evidence: “... relating to the issues arising in relation to the decision under review” (see SZBEL at [33] at [33]).
  8. In SZBEL at [35] the High Court said:
  9. In SZHZD at [39], Barnes FM stated:
  10. As to where the line may be drawn as to what constitutes an issue arising in relation to the decision under review, and what constitute factual matters, in relation to such an issue (that is, matters forming some part of the substratum of the issues) I find guidance in the approach taken by Bennett J in SZJUB, as did FM Barnes in SZHZD.
  11. In SZJUB, the applicant, who came from the People’s Republic of China, claimed to have become a Christian after her arrival in Australia, but claimed to fear persecution on the basis that she had subsequently smuggled bibles into China, and would be regarded by the authorities as a Christian, or as a person who had engaged in smuggling bibles (see SZJUB at [3] and [5]). The applicant’s complaint was that the Tribunal did not raise with her at the hearing the “specific question” as to why she would take the risk of smuggling bibles, when she had a business, and an 11-year-old dependent child (see SZJUB at [23]).
  12. After considering at relevant parts of the transcript (at [24]) the Court stated at [25]:
  13. Specifically in relation to the matters which the applicant said were “issues” not put to her at the hearing, the Court said at [28]:
  14. At [43] of SZHZD, Barnes FM summarised her consideration in that case:
  15. The question in the current case is whether, in discharge of its procedural fairness obligations pursuant to s.425, and as explained in SZBEL, the Tribunal gave the applicant the opportunity at the hearing to address and give evidence in relation to the determinative issue or issues “arising in relation to the decision under review.”
  16. Mr Markus submits that, as a result of the delegate’s decision, the applicant would have been on notice that her entire account, all aspects of her claim, were at issue.
  17. The applicant claimed to have suffered, and that she would suffer persecution, if she were to return to China, because of her practice of Christianity. Her claim was that she had been baptised into, and practised Christianity in a “village” or “underground church” which was not recognised by the government, and which was “banned” by the authorities.
  18. The applicant’s subsequent factual account of what relevantly occurred in China was that on 27 July 2008 police and other officials burst in on a religious service, she and the other practitioners were told that their practice was “illegal”, and she and others were taken away for questioning at a police station.
  19. She claimed to have been detained for 15 days and ill-treated. She was released after her husband paid a fine. She was warned that if she was found attending church in the future she would be gaoled. She claimed she was so scared that she fled to Wuhan to hide with a friend. She subsequently appointed an agent who arranged for her to “flee” to New Zealand or Australia.
  20. Mr Markus submitted that the delegate made comprehensive findings as to the credibility of the applicant’s claims such that she would have been on notice that her entire factual account was at issue.
  21. There are a number of aspects of the delegate’s decision that cause some hesitation in agreeing with this submission. The delegate’s reasons are reproduced at CB 55 to CB 58.
  22. Having regard to these reasons it is clear that the credibility of the applicant’s claims was generally of concern to the delegate (see CB 55.1 to CB 55.8).
  23. The delegate made a clear finding that (CB 55.9):
  24. These factors were said to be the applicant’s account of her claimed religious practice in China which was found to be “vague and lacking in details”, contradictory, unsubstantiated, “lacking in proof”, particularly in relation to “having attended an underground church in China, or being detained, and consequently fearing religious persecution” (CB 56.2).
  25. The delegate’s concerns as to the credibility of her claims also arose from the applicant’s “confused and conflicting” information about her travel out of China (CB 56.3).
  26. Further, the delegate was not “satisfied as to the genuineness” of the applicant’s statement as to why she came to Australia and not New Zealand (CB 56.6). Even further, the delegate rejected the applicant’s claim that she could have exited China in the manner that she did if she were of interest to the authorities (CB 56.9).
  27. All of the above led the delegate to find: “... I am not satisfied that the applicant has suffered persecution in China for religious reasons” (CB 57.1).
  28. It is not entirely clear up to this point of the delegate’s reasoning whether the delegate rejected the applicant’s claim to be a Christian. What the delegate appears to have clearly rejected is the applicant’s factual account to have encountered difficulties as a result of her attendance at an underground church.
  29. The delegate’s doubts as to the credibility of the applicant’s claims and the “genuineness of her” Convention related “fear” (CB 55.9) were said to arise from factors dealing with the insufficiency of her account as to whether she attended an underground church, was detained or suffered persecution as a result.
  30. The credibility concerns were expressed in more direct terms in relation to factors such as the organisation of her travel, her reasons for choosing Australia and her capacity to leave China unhindered.
  31. Nonetheless, when the first part of the delegate’s reasons, dealing with past harm, are read as a whole, at least on a fair reading in my view, it can be said that one issue that determined the application was the delegate’s rejection of the applicant’s factual account in support of her claim to have suffered harm in the past.
  32. This view of the delegate’s reasoning is supported by:
  33. This is further supported by the delegate’s subsequent description of the applicant’s claims “... relating to her activities as a Christian” as being “flimsy and unsubstantiated” (CB 57.3). This latter is set at the beginning of the delegate’s consideration of the likelihood of future harm if the applicant were to return to China (CB 57.2).
  34. Having apparently rejected the applicant’s factual account of past harm based on her claimed religious activities and the subsequent harm that was said to have ensued because of it, it is very difficult to understand why the delegate felt compelled to consider whether the applicant could safely relocate to another part of China (CB 57.5).
  35. The delegate’s action in this regard raises the inference that the need for such consideration was because the earlier findings relating to the rejection of the applicant’s claims of past harm were attendant with such doubt that the delegate needed to proceed on the basis that they may have been at least locally well founded.
  36. In some contradiction to her earlier findings the delegate appears to accept that the applicant did attend “a house church”, albeit have a “low profile” in such attendance. Further, that she: “... would be regarded as someone who may or may not attend a house church if she returns...” (CB 57.8).
  37. The need for clear findings of fact in matters of this type has always existed for both delegates and Tribunals, as such findings of fact are the building blocks upon which relevant conclusions can be properly based.
  38. In a practical sense, particularly from the point of judicial review, any such deficiencies in the delegate’s decision, even deficiencies amounting to errors of law, could, and can, be “cured” by a subsequent Tribunal decision free of any such error, and of course any other error (Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106).
  39. In that sense, and I say this very carefully, some latitude could exist in relation to delegates’ decisions given that, in a practical sense, the Tribunal is the final arbiter (subject to any intervention by the Minister pursuant to s.417) as to whether a protection visa must be granted.
  40. Since the illumination given by the High Court in SZBEL, however, the delegate’s decision record must be accorded greater prominence in considering the Tribunal’s procedural fairness obligations pursuant to s.425. As was said in SZBEL at [34] to [35]: “... the issues arising in relation to a decision under review” (by the Tribunal) would be those which the original decision-maker identified as determinative against the application. While the Tribunal is not confined to those issues, it must take steps at the hearing to “... identify some issue other than those that the delegate considered dispositive...”.
  41. It must be said, with respect, that this delegate’s decision record, given what is set out above, made the Tribunal’s task (and this Court’s) that much harder in readily identifying the issue, or issues, that the delegate considered dispositive.
  42. On balance, however, I am satisfied that, when fairly read as a whole, it can be said that there were two issues which the delegate considered dispositive of the application.
  43. The first was the rejection of the applicant’s factual account to have suffered harm at the hands of the Chinese authorities in the past because of her particular religious practice. This includes her attendance at the critical religious gathering, her detention, her claimed ill-treatment, and her consequently fleeing to Wuhan to hide with a friend, and the subsequent departure from China.
  44. The second issue, should be seen, when read fairly, as being that the applicant in any event could relocate to another part of China to avoid any harm. This was arrived at within the context of taking the claims of membership of an underground church at face value.
  45. Putting to one side that this second issue (in the delegate’s decision) would probably not survive any proper scrutiny (if judicial review were available) if what was said in Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 and SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 was applied. What is of relevance, however, for current purposes is that this second issue was in no way dispositive of the review before the Tribunal.
  46. When fairly read, therefore, the first issue identified as a result of the delegate’s decision, which on balance and on a fair reading is not qualified by the second issue, means that the credibility of the applicant’s factual account of her claimed involvement in an underground church, the subsequent detention and claimed mistreatment and consequent need to flee to Wuhan was already a live issue before the Tribunal because of what can be said to have been found by the delegate.
  47. This is sufficient to dispose of the applicant’s first ground before the Court. An issue determinative before the delegate means that the applicant was on notice that this was a dispositive issue. The Tribunal’s obligation at the hearing generally is to raise other issues (if any) that were not determinative before the delegate, but were dispositive before the Tribunal.
  48. The applicant’s particulars identified four so-called “issues”. All of these are said to include the Tribunal’s disbelief of the applicant’s factual claims in relation to four matters of factual detail.
  49. Ms Welshman submitted that, although the Tribunal discussed each of these four factual matters with the applicant at the hearing, it did not put to the applicant that it disbelieved, at least, the applicant’s claims in relation to these matters. She relies on SZBEL to make the argument that this constitutes a failure of procedural fairness pursuant to s.425 of the Act in circumstances where each of these four factual matters could not be said to have arisen as “issues” from the delegate’s decision.
  50. First, I have difficulty with the description of each of these “issues” as including the Tribunal’s failure squarely to put its disbelief as being the issue, or at least an integral part of the issue. In my view SZBEL does not require this.
  51. There is, in my view, a distinction to be drawn between an issue as it is said to arise from the factual circumstances before the Tribunal, the question that arises in relation to that issue, and then the Tribunal’s answer to that question.
  52. In the current case the issue is the applicant’s factual account of past harm (the detention, ill-treatment and the need to flee) arising from her claimed membership of, and participation in, an “underground” Christian church. The question for the Tribunal was whether to believe that factual account. Its answer was that it did not do so.
  53. This distinction can be seen in Minister for Immigration & Citizenship v SZJGY [2008] FCAFC 87, per Stone, Jacobson and Edmonds JJ, a matter on appeal from this Court, at [11]-[12]:
  54. The applicant claimed to have practiced Christianity in China as a member of an “underground church”. She also claimed to have suffered harm as a result of this. She gave sequential accounts of her experiences following her claimed attendance at a religious gathering in July 2008.
  55. The Tribunal rejected the applicant’s claim to have joined an underground church in China and that she practiced Christianity in China (see [56] at CB 88 and [57] at CB 89). As also set out below, at the hearing the Tribunal indicated to the applicant that her claimed religious practice and participation in the underground church was at issue. It extensively discussed this matter with the applicant (see Q63 at T7 to Q162 at T16).
  56. The applicant’s subsequent account of the police raid, her arrest, detention and flight all arise out of, and are a function of, the claim to have been a Christian practitioner in the underground church. The Tribunal’s refusal to accept the initial element in this factual account, that is her claimed participation in religious activities, could have been sufficient reason not to require the exploration of the later elements. In any event, on any plain reading of the transcript of the hearing, the Tribunal did so (see Q163 at T17 to Q352 at T34).
  57. But even further, SZBEL does not require the Tribunal to: “... give an applicant a running commentary upon what it thinks about the evidence that is given” (at [48]). To the extent, therefore, that the applicant’s complaint is that the Tribunal did not squarely put its concerns or its disbelief of the applicant’s relevant evidence at the hearing to her, then I do not understand SZBEL to require this.
  58. The applicant’s complaint is that the Tribunal considered the relevant factual basis of her claims, but did not put its concerns to her.
  59. The answer to the applicant’s ground, therefore, is further found with reference to SZBEL at [47]:
  60. Even if the delegate’s decision record were not enough, the transcript of the hearing before the Tribunal reveals, as was “conceded” in submissions, that the Tribunal asked, or gave the applicant the opportunity, to expand on those very aspects of her account identified in the particulars to this ground.
  61. Any plain reading of the transcript of the hearing reveals that the Tribunal’s statements and questions were such as to sufficiently indicate that everything she said, that is her factual account as to what had occurred in China, was in issue.
  62. For example, with reference to that part of the applicant’s factual account that she attended religious gatherings, and in particular the gathering in July 2008, the Tribunal’s questioning as to whether there was anyone “acting as lookout?” and the Tribunal’s response of: “...And why not?” when the applicant replied no one was acting as lookout, was, in my view, more than sufficient indication that the Tribunal was having difficulty with that aspects of the applicant’s account (see T18.8).
  63. What follows (at T19) with the Tribunal repeating its question when the applicant appeared to have difficulty in answering the question as to when the applicant last had a religious gathering in her home (T19.7), and finally leading (at T20) to:

was surely more than sufficient indication that the Tribunal was having difficulty in accepting the applicant’s claim to have participated in religious gatherings.

  1. Further, this must also be seen in context of the Tribunal’s questioning in relation to other aspects of the applicant’s factual account. For example, at T16, when discussing the applicant’s account that a preacher in her congregation had been arrested:
  2. In all, therefore, ground one is not made out. The rejection of the applicant’s account to have suffered harm in China as a consequence of her religious practice was a live issue as a result of the delegate’s decision. The Tribunal gave the applicant the opportunity to expand on relevant factual aspects of her claim such that she would additionally have been put on notice that her account of her claimed religious practice and her account of subsequent detention, ill-treatment, release and consequent flight were in issue. Further, that by its questions and statements, the Tribunal sufficiently indicated that all of her account was at issue.

Ground Two

  1. Ground two of the amended application asserts that the Tribunal acted unreasonably by failing to make enquiries regarding an issue that was of critical importance to the review. This is particularised with reference to the Penalty Notice said to have been issued by the relevant Chinese authorities when the applicant was released from detention.
  2. The applicant relies in particular on the transcript of the Tribunal hearing at T27, although, in my view, the relevant part begins at T26:
  3. Copies of this Penalty Notice and translations are before the Court as annexures to the applicant’s affidavit of 17 November 2009, and the affidavit of Mr Li of the same date, subject to the respondent’s objections.
  4. Ms Welshman’s submission was that the delegate’s decision revealed “a general lament about the lack of proof” in relation to the applicant’s claims. The Tribunal doubted that the applicant had been detained. With reference to the second dot point at [56] of the Tribunal’s decision record (CB 88), it is clear that the failure to provide the Penalty Notice to either the Minister’s Department, or the Tribunal, was central to the Tribunal’s finding that it could not be satisfied that she had been detained as claimed.
  5. The applicant relies on the line of authority commencing in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 (“Prasad”), and set out and considered in Minister for Immigration and Citizenship v Le [2007] FCA 1318 per Kenny J (“Le”) (see especially at [60] to [67] for the propositions that, first, the relevant authorities “... establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her” ([60]), and second: “On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223...” (also at [60])).
  6. Ms Welshman specifically referred the Court to Le at [63]:
  7. I note further that after referring to relevant authorities, Kenny J also went on to say (at [63]):
  8. Ms Welshman also relied on more recent Federal Court authority in another matter on appeal from this Court, in MZXTZ v Minister for Immigration & Citizenship [2009] FCA 888 per Gray J, especially at [34] where His Honour accepted the formulation of the relevant propositions of law in Le.
  9. The applicant’s argument, therefore, is that this is a case where there was a failure by the Tribunal to obtain the Penalty Notice, either directly from the applicant’s migration agent, or to have granted an adjournment to enable the Penalty Notice to be provided.
  10. That this was one of those rare and exceptional cases where the Tribunal, if it had acted reasonably, would have made further enquiry and sought to obtain the Penalty Notice. Further, that what made this such a case is that the existence of the notice was central to the Tribunal’s consideration, and it was readily available, and the Tribunal was on notice of its existence and its location.
  11. In response, Mr Markus submitted that what was relevantly said in Prasad was obiter. Second, that in light of the High Court’s judgment in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”), Le: “... cannot be regarded as good law and therefore should not be followed”.
  12. Mr Markus referred the Court to what he said was relevant from SZIAI. I understood this to be a reference to the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
  13. First, that the High Court referred to what was said by Wilcox J in Prasad as “observations” (at [21]), and that these were described by Wilcox J: “... to be tentative and unnecessary for the decision in the case...”. Further, that the High Court noted that Prasad involved grounds of review provided by s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). Therefore not involving grounds of review under the Act.
  14. Second (at [22]), that the “discussion” in Prasad has been adopted or cited in a number of later Federal Court cases, not all of which arose from the ADJR Act. These cases were “collected” by Kenny J in Le.
  15. Third, that, in Prasad, Wilcox J described the grounds of the review in that case (arising from s.5 of the ADJR Act) as “concerned with the manner of exercise of the power in question”. Nevertheless, the inquiry under these provisions, as Le framed it, was “ultimately directed to the unreasonable exercise of a power...” (SZIAI at [21]).
  16. Fourth, that the visa applicant in SZIAI sought to justify the “Prasad line” with reference to two lines of argument. The first was Wednesbury unreasonableness, which Mr Markus submitted, if it applied, applies to a decision, not to the manner of the review. Therefore, to the extent that the “Prasad line” of authorities refer or suggest that there may be unreasonableness in the “manner”, then they cannot be regarded any longer as “good law” given what was relevantly said in SZIAI.
  17. Mr Markus submitted that the second line of argument in SZIAI, which was ultimately abandoned, was to allege a breach of procedural fairness for failure to make an “obvious” enquiry.
  18. The submission was that, given the existence of s.422B of the Act, which acts to make the matters (including investigation by the Tribunal) the exhaustive statement of the natural justice hearing rule (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR; [2007] HCA 35 at [48], Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, in particular at [8] to [18]), then any argument based on a claim of a denial of procedural fairness at common law must fail.
  19. I note in this regard also what was said by the High Court in SZIAI at [24]:
  20. In this regard, in the current case I gave the applicant the opportunity to make further written submissions following the hearing to, in effect, clarify which of the two lines of argument the applicant sought to rely on, if not both.
  21. Ms Welshman subsequently submitted, and confirmed, that the applicant did not rely on any procedural fairness argument, given what the High Court said in SZIAI at [24].
  22. However, Ms Welshman submitted that the High Court did not rule out a duty to enquire based on Wednesbury unreasonableness which should not be characterised as a matter of procedural fairness.
  23. Ms Welshman relied on SZIAI at [25]:
  24. As to the remaining issue of unreasonableness the applicant’s position is that this Court is bound by Le, which remains “good law”, because the High Court’s decision in SZIAI does nothing to erode the relevant proposition in Le, or to criticise it.
  25. Ms Welshman also emphasised that in the very recent case of MZXTZ, also an appeal from this Court, the Court adopted the relevant proposition from Le as being the correct formulation of the relevant law (see at [34]). (I should just note that MZXTZ was handed down on 14 August 2009, prior to the High Court’s judgment in SZIAI (23 September 2009)).

Consideration

  1. There is some strength in Mr Markus’ submission regarding the remaining proposition from Le (unreasonableness), given what I understood to be the tenor of the High Court’s consideration as submitted by Mr Markus. In this sense, I do not agree with Ms Welshman that the “decision in SZIAI does nothing to erode the above principle...”.
  2. But what also emerges is that SZIAI does not stand for the proposition that there is no obligation on the Tribunal to make enquiries at all. At [25] the High Court set out that the Tribunal had a duty to review, in the sense that a failure to make an obvious enquiry: “... could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”.
  3. But the High Court did not see it as necessary to explore these principles, given that the particular circumstances of the case before it were such that no enquiry would have yielded a useful result, and any further enquiry would have been futile (see at [26]).
  4. What remains, therefore, is that in “some circumstances” a failure to conduct an obvious enquiry may be seen as a constructive failure to exercise jurisdiction, or that the decision is affected in some other way that manifests itself as jurisdictional error. In some situations, such circumstances could encompass the relevant circumstance in Le.
  5. In any event, in my view, in the circumstances it is not necessary to resolve the degree to which SZIAI may be said to “overrule” Le, or otherwise. This is because the relevant circumstances of this case do not reveal even the limited circumstances on which the proposition in Le is based, or the “some circumstances” in SZIAI which could supply a sufficient link to the outcome such as to constitute a failure to review.
  6. In her evidence before this Court, the applicant stated that, at the hearing before the Tribunal, she believed the Tribunal had a copy of the Penalty Notice. That she did not understand from the Tribunal’s questions that a copy of the Penalty Notice was not before the Tribunal. That she only became aware of this when the Tribunal’s decision was subsequently explained to her.
  7. The applicant’s evidence before the Court was inconsistent with evidence she gave the Tribunal in at least one particular. Her evidence before the Court was that her husband had “faxed” the Penalty Notice to the migration agent. Her evidence to the Tribunal was that her husband “faxed” the notice to her (see Q285 at T28).
  8. The applicant appeared to have some difficulty before the Court in answering whether she recalled telling the Tribunal that her husband had “faxed” it to her. While accepting that, on its own, this is clearly insufficient to ground some adverse view of the applicant’s evidence as a whole, it does, in my view, allow an inference, given her lack of explanation, that her evidence to the Court, in this regard, was self serving.
  9. The applicant’s claim that she was provided with a copy of the Penalty Notice by her agent, Ms Weiming Qian, during a meeting at her office, and then understood that the Tribunal did not have the Penalty Notice only after the Tribunal’s decision was read and explained to her, would clearly be weakened if she had received the Penalty Notice by “fax” from her husband in the first place. Clearly it was in the applicant’s interest now before the Court to distance herself from her evidence before the Tribunal that her husband “faxed” the Penalty Notice to her, and she then gave it to her agent. Nor was her apparent inability to recall what she relevantly told the Tribunal of assistance to her credibility before the Court.
  10. In any event, and quite separately, I did not find the applicant’s evidence that she believed the Tribunal to have a copy of the Penalty Notice to be credible, given what is relevantly, and clearly, set out in the very transcript of the Tribunal hearing put before to the Court by the applicant in support of her case.
  11. The relevant questions begin at T26:
  12. The Tribunal’s questions were short, to the point, and clear. If nothing else, Q277 (and certainly when read with Q278 and Q279) makes it very clear that the Tribunal did not have the Penalty Notice.
  13. I did not find the applicant’s evidence before the Court that she did not understand that the Tribunal did not have the Penalty Notice to be credible. Her evidence to the Court was that she had difficulty understanding the interpreter, and that she told the interpreter during a “recess” to speak slower.
  14. This is in sharp contrast to what she relevantly told the Tribunal in her evidence. The applicant told the Tribunal she had no difficulties with the interpreter. She was put on notice at the beginning of the hearing that if she had any problems, to ask the Tribunal (see at T2):
  15. There are a number of parts of the transcript that show that the interpreter needed to clarify some terms with the applicant (see Q82 to Q84, Q98, Q118, and Q266). But none of these instances reveal any deficiency in the interpreter’s capacity such as to say that the applicant was unable to understand what was said. Indeed the interpreter’s action in seeking to clarify certain points would reveal a careful approach. That the interpreter was unable to “interpret” certain terms relating to Christian denominations (Q82) does not, in the totality of the hearing which lasted 2 hours and 19 minutes (see T1, T45, and CB 67), show that the applicant had any difficulty, generally, in understanding the interpreter, let alone at those parts of the hearing dealing with the Penalty Notice.
  16. Importantly, there was no complaint whatsoever by the applicant to the Tribunal that she could not understand the interpreter. Nor, when given the opportunity towards the conclusion of the hearing, did the applicant make any complaint, or raise any difficulty, even though she went on to put other matters to the Tribunal (see Q453). Nor was there any complaint at the relevant part of the hearing dealing with the Penalty Notice.
  17. The applicant’s evidence before the Court was that during a “recess” she asked the interpreter to “slow down”. The difficulty for the applicant is that the transcript does not reveal that any break or “recess” occurred such that this conversation could have taken place. Even when the applicant’s witness was called (Q381 at T36), and completed her evidence (Q435 at T41), there does not appear to have been any break in the proceedings such as to provide the applicant with the opportunity she claims, or that she could have had such a conversation without that being recorded. The recording equipment was switched on at 11.09am (T1), and switched off at 1.28pm (T45). It appears to have run continuously.
  18. The applicant’s evidence was that after the Tribunal’s decision was “handed down” her agent provided her with a copy of the Penalty Notice and had even arranged an English translation (see paragraph 3 of the applicant’s affidavit dated 17 November 2009). The hearing was held on 13 May 2009. Although the decision was not “handed down” (there is no longer any legislative requirement for this to occur – see Schedule 1 to the Migration Legislation Amendment Act (No 1) 2008 (Cth)) the applicant was notified of the Tribunal’s decision (the decision record was enclosed) by letter sent to her at her address for service (CB 61.7 and CB 75) by registered post, and dated
    21 July 2009.
  19. A clear inference can be drawn that the migration agent was still acting for the applicant up to, if not some little time after, receipt of the letter of notification and the decision record. The period between the hearing and the “handing down” was nine weeks. There is nothing to show that the applicant made any complaint to the Tribunal in that time about not being able to understand the interpreter. Nor is there any suggestion, let alone evidence that she sought to make her complaint to, or through, her agent. Nor is there any evidence that the agent made any complaint on the applicant’s behalf during this period when she was still acting for her.
  20. Before the Court the applicant did not press any complaint of fraud or even negligence on the part of the agent. At best the allegation is that the agent had been given the Penalty Notice with instructions to give it to the Tribunal. The agent’s evident failure to do so remains unexplained. Importantly, there is no evidence of any subsequent complaint made to the agent or to the relevant migration agent supervisory authority regarding what turned out to be an important “omission” on the applicant’s behalf.
  21. In circumstances where the applicant gave evidence that she only realised the importance of the agent’s alleged failure, and indeed the failure itself, after the decision was read to her by another person, there was no evidence that any steps were taken to ascertain from the agent why she had failed to follow instructions in relation to the Penalty Notice.
  22. The applicant has shown herself capable of being able to arrange assistance in the conduct of her pursuit of a visa to remain in Australia. Within 12 days after her arrival she was able to arrange the engagement of a migration agent, and the making of her application for a protection visa (see CB 15.5 and CB 1). She was able to arrange for her landlady to give evidence on her behalf to the Tribunal (CB 67 and CB 86 and T36). Following receipt of the Tribunal’s decision record she obtained the assistance of a Ms Qiao who was able to “explain” the decision record to her such that she understood the importance of the: “implications of the fact that a copy of the Penalty Notice was not before the Tribunal”. Within about 4 weeks from the Tribunal’s notification the applicant was able to arrange the engagement of solicitors to act on her behalf.
  23. Yet, in all the circumstances, there is nothing before the Court to show that any approach had been made to the agent to explain her alleged failure, let alone that any complaint has been made to her, or about her, to the relevant supervisory authority. Beyond making the allegation before the Court, the applicant appears otherwise inactive about what she now says was an omission by the agent which had serious adverse implications for her.
  24. In all the circumstances, I cannot accept that the applicant did not understand that the Tribunal did not have the Penalty Notice. I say this particularly given what is clearly set out in the transcript of the Tribunal hearing.
  25. I do not see that the circumstances of this case are such that the Tribunal was obliged to pursue the agent for the Penalty Notice. This is not a case such as in Prasad where the enquiries that the Minister failed to make were enquiries of his own Department, and enquiries of the applicant in that case in relation to concerns (about inconsistencies) that were known to the Minister’s officers, but not the applicant.
  26. In Le the Tribunal was found to be in error when it made no enquiries of the relevant officer in the Minister’s Department as to a mistranslation that occurred during an interview with one of the relevant parties before the Minister’s Department, and then subsequently put before the Tribunal. This was in circumstances where the report of the interview prepared by the relevant Departmental officer was “problematic” (see Le in particular at [68] to [79]).
  27. The current case does not involve any such special or rare circumstances, or even “some circumstances”. The applicant was asked about the Penalty Notice at the hearing. She said it was with her agent. The evidence before the Court is such that I do not accept that she did not understand that the Tribunal did not have a copy of it at the hearing.
  28. Before the Court both parties focussed on the joint judgment in SZIAI. Neither party referred to the judgment of Heydon J. I found what his Honour said at [52] to be directly relevant to the current matter:
  29. In the current case the Tribunal was clear at the hearing that it did not have any Penalty Notice before it. In these circumstances it “was not unreasonable for the Tribunal to proceed on the basis” that if the Penalty Notice was to be provided it was up to the applicant to take steps to provide it in light of the clear indication that it did not have it. Ground two is not made out.
  30. I should just note that no fraud or negligence on the part of the migration agent was pressed before the Court. If the applicant’s evidence, consistent at least in relation to the point that the agent had the Penalty Notice, is accepted, then the best (or worst) that can be said is that the agent’s conduct was either one of omission or some incompetence. Whatever the case, this remains unexplained before the Court.
  31. I should also note that it is not strictly necessary to rule on the respondent’s objection to the Penalty Notice coming into evidence before the Court, on the basis of relevance. If necessary, I find that the existence of the Penalty Notice itself, its terms, is not relevant to the issue before the Court as pleaded. The pleading was that the Tribunal should have made enquiries to obtain the notice from the agent. The existence of the notice, or even its importance, however, was never at issue before the Court. The respondent did not assert that the notice did not exist. Simply that it was not unreasonable for the Tribunal to proceed on the basis that it was for the applicant to arrange for the notice to be given to the Tribunal when the Tribunal clearly indicated at the hearing that it did not have the notice.

Conclusion

  1. The applicant, with the benefit of legal advice, has put two grounds before this Court. Neither ground is made out. In these circumstances the application, as amended, is dismissed.

I certify that the preceding 166166one hundred166166sixty-sixfiveone hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Associate: D Nestor


Date: 25 January 2010

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