Jiang v Minister for Immigration & Anor [2010] FMCA 97 (19 February 2010)

Last Updated: 30 June 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JIANG v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 97

MIGRATION – Judicial review of Refugee Review Tribunal – observational evidence of corroborative witness – whether way in which evidence dealt with amounts to jurisdictional error.

Migration Act 1958 (Cth), ss.348, 368, 430, 474 & 476

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 AZAAJ V Minister for Immigration & Anor [2008] FMCA 1680 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SBLF v Minister for Immigration and Citizenship [2008] FCA 129 WAEE v Minister for Immigration and Multicultural Indigenous Affairs [2003] 75 ALD 630

Applicant:

BO HAN JIANG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 213 of 2009

Judgment of:

Lindsay FM

Hearing date:

3 February 2010

Date of Last Submission:

3 February 2010

Delivered at:

Adelaide

Delivered on:

19 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr Ower

Solicitors for the Applicant:

McDonald Steed McGrath

Counsel for the Respondents:

Mr P d’Assumpcao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) A Writ of Certiorari issue directed to the second respondent quashing the decision of the second respondent made on 2 July 2009 in matter number 0903293.
(2) A Writ of Mandamus issue directed to the second respondent requiring the second respondent to determine according to law the review of the decision of the delegate of the first respondent dated 6 April 2008.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SOUTH AUSTRALIA

ADG 213 of 2009

BO HAN JIANG

Applicant

and

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to section 476 of the Migration Act 1958 (“the Act”) for orders by way of certiorari and mandamus relating to a decision of the Migration Review Tribunal (“the Tribunal”) of
   2 July 2009. The decision of the Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a Child (Migrant) (Class AH) visa.
2. The decision of the Tribunal is a privative clause decision pursuant to s.474 of the Act and, therefore, is not liable to be set aside unless the decision can be demonstrated to have been vitiated by jurisdictional error, as that concept was explained by the High Court in cases such as Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163.
3. The applicant is a citizen of the People’s Republic of China. His mother is a permanent resident of Australia and was his sponsor for the visa which he sought.
4. There was no controversy as to the statutory criteria relating to the grant of the visa. The criteria are to be found in clause 101.21 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), including 101.211(1)(b) and 101.213(1). The applicant, at the time of the making of the application, must not be engaged to be married or have a spouse or have ever had a spouse and must not be engaged in full time work and he must have, since turning 18 or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full time course of study at an educational institution leading to the award of a professional trade or vocational qualification.
5. It was the question as to whether or not the applicant was undertaking a full time course of study that was determinative of the application for the visa both before the delegate and the Tribunal.
6. The applicant failed before the delegate because in reliance upon information provided by an officer of the Australian Consulate General in Shanghai, who conducted personal interviews with the applicant, the delegate was not satisfied that the applicant was engaged in full time study. At CB75, there are six dot points which set out the applicant’s failure to provide certain information in relation to the identity of his university and the nature of the course he was undertaking which grounded the view the delegate came to that he was not satisfied that the applicant was currently studying full time.
7. The Tribunal had before it the delegate’s file, of course. In addition to that, the Tribunal had a statement by the visa applicant and a statutory declaration from one Paul Stanley Giles, who is the husband of the visa applicant’s mother. Other documents were also provided to the Tribunal.
8. An oral hearing was convened on 30 June 2009. The applicant gave evidence with the assistance of an interpreter. Mr Giles also gave evidence. The applicant’s mother gave evidence.
9. The Tribunal was not satisfied that the visa applicant was a full time student.
10. The reason the Tribunal came to that conclusion was essentially the same reasons as had led the delegate to come to that same decision.
11. Mr Giles’ declaration included the following passages:
    • 25: When I visited China in April 2006 I spent time with Wei and time with Bo Han as well. While I was in China we went to Bo Han’s school, the Chan Chung Radio and Television University and I recall meeting the headmaster or the headmaster’s deputy. The school is not a particularly gracious building by Australian standards. I can remember being struck by that. Bo Han had a “sleeping room” where four boys slept. While visiting the university we drove around Chan Chung. We were looking for another school. Wei was not particularly happy with the Chan Chung Radio and Television University and we were looking at other options. We looked at numerous other schools during a two to three day period driving round the city and visiting schools. It was actually quite hard work. We couldn’t really find another option for Bo Han that was acceptable and so it was decided that he would remain at the Chan Chung Radio and Television University...
    • 27: I believe that Bo Han was on school holidays for some of the time when I was in China from June to October 2006 although I believe that he went back to school when I was there. I have a recollection of him getting ready for school and heading off in the mornings. I did not visit the school on this occasion but as I was living closely with Wei and Bo Han at the time I was aware of his activities and whilst I cannot give the exact dates for attendance, I know that Bo Han was attending school during this period.
12. Mr Giles’ declaration also purported to provide information which supported the applicant’s own account in his statement provided to the Tribunal explaining the inconsistencies and gaps in his knowledge relating to his attendance at the university which had been of such concern to the delegate and were of such concern to the Tribunal.
13. Mr Ower, who appeared on behalf of the applicant before me, described the materials set out in paragraphs 25 and 27 of Mr Giles’ affidavit as “observational evidence” and I think that is an appropriate way to categorise it.
14. In its reasons at paragraph 48 the Tribunal says:
    • The Tribunal accepts that a number of the questions asked of the visa applicant at interview in Shanghai were ones that it was not reasonable for a student to know. For example, it would not be necessary at certain institutions for students to be familiar with their student number, and similarly a student may not know the street number of an institution. The Tribunal accepts that the names of certain course subjects may be lost in translation. The Tribunal considered the evidence provided and the explanation offered by the visa applicant, and by his step father in his statutory declaration. However, allowing for these aspects the Tribunal found that there remained much in the responses of the visa applicant that did raise serious doubts as to his bona fide as a full time student. The Tribunal found the visa applicant at the hearing evasive and tending to label his first interviewer as “nitpicking” and was reluctant to admit that he had not told the truth.
15. The Tribunal also found at paragraph 49:
    • There were a number of issues from the interview, that the Tribunal followed up at the hearing that were not resolved to the Tribunal’s satisfaction. Some of them as isolated examples may not have meant much but in total they represented responses that were evasive and raised serious doubts in the mind of the Tribunal that the visa applicant was a bona fide full time student. There were too many instances of books being lost or missing, or unable to be found. The text he produced had in it the writing of a classmate, as he had lost his own copy. He produced a text for a course that was only printed after the course was completed, as he had lost the original book. He was unable to produce work books or exam papers as requested for the interview, as they were lost. Asked to name some of the 37 courses offered, he named only 7 and of these none matched with only 2 matching approximately.
16. The Tribunal also found at paragraph 50:
    • The visa applicant asked to state his best exam in his final exam of his final term said Management of Finance, yet this subject had not been offered in that term. He was not able to explain this. Similarly, he was asked if he took English III in his last term which he said he did, but his documents show that he had not taken that subject. His explanation was that it was not shown as he was doing a supplementary exam. His statements about voluntary activities he listed were at odds with the records produced. The Tribunal found the explanations offered for the various discrepancies implausible. The visa applicant was ignorant of many basic features of the course and the subjects he was allegedly undertaking.
17. And at paragraph 52:
    • The cumulative effect of all these elements was that the Tribunal was not able to accept that the visa applicant was a full time student.
18. It is plain from a reading of those reasons that the Tribunal approached the matter upon the basis of focussing upon the discrepancies in the account the applicant had given to the delegate of the Minister. There was a complaint by Mr Ower that this approach amounted to a failure by the Tribunal to fulfil its statutory obligation to carry out a review. I think, though, recognition has to be given to the particular way in which the application proceeded. Manifestly, the applicant would have had an opportunity in the period of time following the interview with the delegate’s representative to fill in the gaps, as it were, in relation to his knowledge of the course and such matters. Testing his account of such matters in the Tribunal was unlikely to be of much utility. It was always going to be an important part of the Tribunal’s exercise to assess the reasons for the gaps in the applicant’s knowledge of the course and other concerns raised in relation to his knowledge of the university, as such gaps emerged before the delegate. It was a natural consequence of the way the matter had been dealt with by the delegate that these matters would be front and centre in the Tribunal’s considerations.
19. There is an error in paragraph 53 of the Tribunal’s decision. The Tribunal finds, without there having been any discussion of the issue at all, that the visa applicant did not meet the age requirements of regulation 101.211(1)(b). That was not the case. In the circumstances I think it is plainly a typographical error. He plainly did meet the age requirements of the Regulations and the Tribunal noted the same at an earlier part of the reasons.
20. The relevant documentary material provided to the Tribunal on behalf of the applicant is to be found at CB28 and CB65 to 68, being certificates from the Chan Chung Radio and TV University which noted the applicant was a full time student and the academic transcript from the university.
21. The applicant complains that the Tribunal failed to give any weight to the evidence of Mr Giles and failed to consider or make any findings in relation to the two documents referred to.
22. Alternatively, it was contended that the way in which the Tribunal dealt with the evidence of Mr Giles and those documents was irrational. In either case, it was contended that the Tribunal fell into jurisdictional error in respect of the way it dealt with Mr Giles’ evidence and the documents.
23. One of the difficulties in determining this matter is that it is unclear whether the Tribunal came to the view that the applicant had never been a student or was simply not a student at the time of the application, which was February 2009, or whether it came to the view that he was only a part time and not a full time student. A fair reading of the reasons does not shed any light on those issues. All we know is that the Tribunal came to the ultimate conclusion that he was not a full time student. I take the view, from a reading of the Reasons in their entirety, that the Tribunal came to the view that he had never been a full time student, whether at the time of application or earlier.
24. I have already noted that the Tribunal essentially picked up and relied upon the same credibility findings that had been determinative of the matter before the delegate. They were said to be indicative of the applicant not having attended the course of study at the university at all.
25. It can be immediately recognised that such a finding is directly inconsistent with Mr Giles’ observational evidence. Mr Giles claims to have personal first-hand knowledge of the applicant’s attendance at the relevant course. He says he attended with the applicant at the institution concerned, made observations in relation to his accommodation arrangements, spoke with a principal or deputy principal, and otherwise, during the course of his attendance in China in April and between June and October 2006, was satisfied that the applicant was in attendance at that course of study.
26. Mr Giles’ evidence before the Tribunal is summarised at paragraph 28 (CB123) as follows.
    • Mr Paul Giles gave evidence. He said he was the husband of the review applicant and so the step father of the visa applicant. Reference was made to his statutory declaration. He said in China often the roads were not well known to people, but the location was and the building was. He had been to the school in question and knew where it was but he did not know the road let alone the number. He said that he knew him as a student, and saw where he was living which he did not like, it was not like residential places at universities here. He said he had stayed at the review applicant’s house, which was vacant when she was not there on a visit.

It will be seen that Mr Giles evidence was broadly consistent with the material set out in his statutory declaration.

27. As was observed by the Full Court of the Federal Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC74 at [23] and [24]:
    • 23 The Tribunal is instructed by the Act to determine whether a protection visa is to be granted to an applicant or refused. In effect the outcome of that adjudication depends upon whether the Tribunal is satisfied that the applicant is a refugee within the meaning of that term as used in the Convention. (See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh, Gummow JJ at 275-276). The requirement that the Tribunal be so satisfied is a "jurisdictional fact" and not a state of mind formed at the Tribunal’s discretion. The satisfaction, or lack thereof, must be determined reasonably, that is, properly, according to the principles set out above. (See: Eshetu per Gummow J at [134]-[146]).
    • 24 The importance of the Tribunal’s function and acknowledgement of the foregoing principles is recognised by s 430 of the Act which requires the Tribunal to explain its decision by providing a written statement that sets out the findings made by the Tribunal on material questions of fact, the evidence or material relied upon for those findings, and the reasons of the Tribunal. (c.f. W157/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1536; (2001) 190 ALR 55 at [47]- [52]).

Those observations were made in relation to s.430 of the Act in the context of the obligations of the Tribunal, but they are identical to the obligations of the Tribunal, under s.368 of the Act.

28. At an earlier passage of the judgment of the Full Court (at [26] and [27]), the court said:
    • 26 The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".
    • 27 Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
29. In the instant case, the Tribunal was surely required to express some view as to whether or not it accepted the evidence of Mr Giles. All we have is the passage referred to above from paragraph 48 of the Tribunal’s reasons that the Tribunal considered his statutory declaration and that, “allowing for these aspects”, it was not satisfied that the applicant was a full time student. There may have been many reasons why the evidence of Mr Giles was not sufficient to persuade the Tribunal that the applicant was engaged in a course of full time study at the university, but we have no indication from the Tribunal’s reasons that it turned its mind to the inadequacies of any aspect of his statutory declaration or evidence. There is nothing in the Tribunal’s reasons to indicate that it has come to any view, in the sense of engaged in any process of weighing the testimony in both declaration and oral form of Mr Giles.
30. It is one thing to reject his evidence or not to be able to rely upon it. It is another thing altogether to simply note that his evidence has been taken and then come to no conclusions about the value of the evidence in the review process. I have already noted that Mr Giles’ evidence is directly inconsistent with the view the Tribunal came to that the applicant was not engaged in a course of full time university study. That being the case, the Tribunal was surely obliged to express some view about his evidence so as to demonstrate that it has undertaken the obligation it had to review the delegate’s decision.
31. The failure to assess in any meaningful way evidence capable of providing important corroboration of an applicant’s case arose in AZAAJ V Minister for Immigration & Anor [2008] FMCA 1680. There, a medical report said to be corroborative of injuries sustained at the hands of state agents by an applicant for a protection visa, whose account of treatment at the ands of such agents was rejected on credit grounds, was not considered at all, or at least only referred to indirectly as being part of the material before the delegate. I found jurisdictional error attended the way in which the Tribunal ignored the material. The material might have been rejected, but it had to be evaluated for the Tribunal to be taken to have fulfilled the task of review entrusted to it by the statute.
32. Here, Mr Giles’ declaration and evidence is specifically referred to and, inferentially at least - the “even allowing for” reference at paragraph 48 of the Reasons (see [14] above) – considered. But the observational evidence if accepted provided clear corroboration of the applicant having been in full time study in 2006. If “allowing for” it means accepting it, as it surely might, how does that finding sit with a rejection of the applicant’s claim to have been engaged in full time study? It is wholly inconsistent. If the Tribunal, in reliance on Mr Giles’ evidence in oral and written form had thought the applicant was a full time student in 2006 it may well have been more inclined to accept his claim – relevant claim – that he was a full time student at the time of application in 2009. Or it may not have. But the issue needed to be squared up to by the Tribunal. I do not see any meaningful distinction in a situation where the Tribunal does not refer to corroborative material at all (AZAAJ (supra)) or does refer to it ostensibly but then gives no clue as to how it has been evaluated. Whether the failure is one to consider material at all that should have been considered, or to consider the material but to do so in a non-rational way, jurisdictional error can arise.
33. Mr d’Assumpcao, for the respondents, says that the failure to consider Mr Giles’ observational evidence does not fall in to the category that concerned the Full Court of the Federal Court in WAIJ (supra see [28]) above. He says that the view the Tribunal came to as to the credit of the applicant entitled them to reject the applicant’s case, no matter what weight they gave to Mr Giles’ observational evidence. But, again, we need to give specific attention to the way in which the application proceeded. The applicant failed before the delegate because he did not know facts about the course he said he took and the institution he said he attended, which he ought to have known if he had done those things. That was his “credit” problem. His proffered explanations for those gaps in his knowledge before the Tribunal were not accepted. He did not persuade the Tribunal that the omissions were on account of nervousness, or were understandable in the circumstance, or were of no consequence. The Tribunal came to the view that he had never attended the course at all (that is the best view I consider of what the Tribunal actually decided – see [23] above). But if Mr Giles’ observational evidence was accepted, the applicant had been engaged full time at the course in 2006. It was evidence which, if accepted, was capable of assuaging the Tribunal’s doubts as to the applicant’s account before the delegate. There was nothing irredeemably tainted or inherently fatal about the applicant’s credit problems which could not have been assisted by evidence corroborative of his contentions. It was not as if the credit issue arose from material before the Tribunal evidencing the impossibility of the applicant being resident in China between 2006 and 2009, for example. In that event, Mr Giles’ evidence must simply be taken to be wrong. Here, the observational evidence of Mr Giles had to be evaluated in deciding whether to accept that the applicant’s account was true. If it was not accepted, the Tribunal was bound to say so and say why. If it was accepted but was somehow taken to not be inconsistent with the applicant having given a false account of attending the course, such a finding also needed to be explicated.
34. We must be careful, however, not to determine this Review upon the basis of assessing whether or not the Tribunal gave adequate Reasons in coming to the decision it did, as we would in an appeal from a judicial determination on a point of law. There are risks in approaching the obligation of the Tribunal under s.368 of the Act in that way.
    Mr d’Assumpcao relied upon the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 in relation to s.430 of the Act, the analogous provision in the Refugee Review Tribunal context, as establishing that a failure to give Reasons in accordance with that section was not a requirement that went to jurisdiction (see that decision at [70]).
35. It is a failure to evaluate or explain how it dealt with Mr Giles’ observational evidence in coming to its decision that concerns me. To the extent that it is evaluated at all, it appears to have been accepted. If that is so, it is difficult to reconcile that in any rational way with the decision the Tribunal came to. Whether on account of a failure to consider at all, or failure to do so in a rational or explicable way, that failure in the circumstances of this matter must be taken to be one which goes to jurisdiction. I prefer to express my finding as to jurisdictional error in that way, rather than as a failure to conduct the Review required by s.348 of the Act (see decision of Gray J in SBLF v Minister for Immigration and Citizenship [2008] FCA 129 at [37]- [41]).
36. The two documents relied upon by the applicant were the subject of more express references by the Tribunal in its Reasons. Documents of the nature of the certificate and the academic transcript in this case are easily fabricated. They would be less capable of rescuing, as it were, an application otherwise seriously impugned on credit grounds. Not every piece of evidence need be referred to in the Tribunal’s Reasons, in any event (see WAEE v Minister for Immigration and Multicultural Indigenous Affairs [2003] 75 ALD 630 at 641). But I need not come to any final view about the way in which it used these documents, in the light of the decision I have reached about the observational evidence.
37. The Review will be allowed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: S. Davis

Date: 19 February 2010