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SZOLJ & Ors v Minister for Immigration & Anor [2011] FMCA 81 (17 February 2011)

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SZOLJ & Ors v Minister for Immigration & Anor [2011] FMCA 81 (17 February 2011)

Last Updated: 22 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOLJ & ORS v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to comply with s.424A of the Migration Act 1958 – whether “information” within s.424A of the Act – whether Tribunal complied with the procedures in s.424AA of the Act – no jurisdictional error.


MZYFH v Minister for Immigration and Citizenship and Another (2010) 188 FCR 151; [2010] FCA 559
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46
SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486
SZNKO v Minister for Immigration and Citizenship and Another (2010) 184 FCR 505; [2010] FCA 297
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123

First Applicant:
SZOLJ

Second Applicant:
SZOLK

Third Applicant:
SZOLL

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 1203 of 2010

Judgment of:
Barnes FM

Hearing date:
26 November 2010

Delivered at:
Sydney

Delivered on:
17 February 2011

REPRESENTATION

Counsel for the Applicants:
Mr T Ower

Solicitors for the Respondents:
DLA Phillips Fox

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1203 of 2010

SZOLJ, SZOLK, SZOLL

Applicants


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Refugee Review Tribunal dated 5 May 2010 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
  2. The first and second applicants, citizens of China, arrived in Australia on 9 and 17 December 2007 respectively. They applied for protection visas on 17 August 2009. Only the first named applicant made specific claims under the Refugees Convention. For convenience she is referred to hereafter as “the applicant”. Their child, who was born in Australia in October 2009, was included in the protection visa application as a member of the applicant’s family.
  3. In a statement accompanying her protection visa application of August 2009, the applicant claimed her family had been persecuted in China and that she feared persecution as a Christian. She claimed that she became a Christian under the influence of her father who was a leader and organiser in the family church in China (the Shouters) who had been imprisoned for two months in 1996 because he refused to participate in the government sanctioned “Three-self Patriotic Movement” and “had been intimidated and warned by local government many times”. She claimed that on 13 August 2006 police interrupted a family church activity at their home, confiscated bibles and other material and took the attendees to the police station for questioning. The applicant claimed that because she was young (nearly 17 years old at the time) the police “just educated” her and told her to pay more attention to study rather than superstitious beliefs. She claimed her father was sentenced to six months re-education through labour for organising an illegal gathering and that her mother and other attendees were charged with participating in an illegal gathering and detained for seven days.
  4. The applicant claimed her father was mistreated while detained, released in February 2007, but detained again in April 2009 for attending a church gathering and sentenced to one year’s re-education through labour for organising illegal religious activities and distributing materials. She claimed that if she continued to believe in Christianity in China (as she would) she would be put in prison like her father. The applicant claimed that since coming to Australia she had been attending Chinese church meetings regularly in the Lidcombe area.
  5. The application was refused by a delegate of the first respondent and the applicants sought review by the Tribunal. The applicant provided the Tribunal with a letter of support from the “Christian Assembly of Sydney” attesting to her regular attendance since June 2009 at meetings of the Assembly in Lidcombe. She attended Tribunal hearings on 9 April 2010 and 28 April 2010 and provided the Tribunal with supporting country information from Amnesty International.

The Tribunal decision

  1. In its findings and reasons the Tribunal detailed the applicant’s written claims and her oral evidence at a Departmental interview and at the two Tribunal hearings. It recorded that it explained s.424AA of the Migration Act 1958 (Cth) (the Act) to the applicant and put certain specified material to her for comment at the hearing on 28 April 2010.
  2. The Tribunal summarised the applicant’s claims as a claim to fear persecution in China because of her religion; that she became interested in the local church because her parents were believers; that she became more serious about the religion when she was about 14 or 15 years old; that her father had been imprisoned on three separate occasions; that she and her mother were also detained on one occasion; and that she would continue to practise her religion in China and may be persecuted.
  3. The Tribunal accepted that the applicant travelled to Australia in December 2007 to study and also that she had been attending local church gatherings in Lidcombe since June 2009. While it accepted that local church believers may be subjected to detention and mistreatment in China, the Tribunal did not accept that the applicant had practised this religion in China or that she was detained by the Chinese authorities in August 2006 as claimed. Although the applicant had been attending local church gatherings in Australia, the Tribunal did not accept that she would practise that religion should she return to China in the reasonably foreseeable future. Nor did it accept that the applicant’s father had been imprisoned on three separate occasions or that her mother was detained in August 2006 for a period of seven days.
  4. The Tribunal did not find the applicant to be credible on what it described as some “key aspects of her claims”. It found that a number of matters, which it detailed, led it to conclude that she was “not a reliable witness in relation to certain aspects of her claims”.
  5. The Tribunal found that, notwithstanding that the applicant claimed she was a committed local church believer who had been seriously interested in the religion since she was about 14 or 15 yeas old, when questioned about specific matters relating to the religion during the Departmental interview she had been unable to provide detailed answers to any of the questions. In addition it found that in her oral evidence before the Tribunal, when questioned about specific matters relating to the beliefs of local church practitioners, the applicant was “clearly lacking in knowledge”. Of particular concern to the Tribunal was the applicant’s lack of knowledge relating to the meaning of the expression “God’s economy”. It found that the applicant’s explanation that they did not talk about this at Lidcombe (the church she attended in Australia) was not a reasonable explanation for her lack of knowledge. The Tribunal was of the view that had the applicant been involved with the local church as she claimed, she would have been able to provide it with a detailed explanation of this concept (which the Tribunal described in a summary of independent country information about the local church in China). The Tribunal also had regard to the fact that when it had asked the applicant about the purpose of “calling on the name of the Lord” (a matter also referred to in country information cited in the decision), she was “unable to provide a response that would indicate her claimed involvement in the said religion”. The Tribunal found that it was clear from the applicant’s answer that she did not know what the purpose was as taught by the local church. The Tribunal was not satisfied that the applicant had practised in the local church in China.
  6. The Tribunal considered the applicant’s claim that she was baptised on 9 July 2006 but had not discussed her baptism with her father. It was of the view that had the applicant been baptised and if her father was a strong believer as claimed, he would have discussed in detail her preparation for such an important and significant event. The Tribunal was not satisfied that the applicant was baptised in China as claimed.
  7. The Tribunal also had regard to inconsistencies in the applicant’s evidence about when her father was detained and to the fact that she had referred to telephoning her father at a time when she had claimed that he was detained. The Tribunal was not satisfied that the applicant’s reference to a conversation with her father at a time she had claimed he was detained was a “slip of the tongue”. It was of the view that “she forgot momentarily” that her claim was that her father was detained at that time. It was not satisfied that the applicant’s father was detained in 2009 as claimed.
  8. The Tribunal had regard to inconsistencies in the applicant’s evidence to the delegate and to the Tribunal about her father’s movements and activities after his claimed release from detention in February 2007 (in particular as to whether he held gatherings at their home). The Tribunal did not accept that “the applicant or her family members practiced the local church religion in China”.
  9. The Tribunal also expressed concern in relation to the applicant’s evidence about where her father was detained. The Tribunal did not accept that the applicant or the applicant’s mother (who was said to have visited her father in detention) would not be aware of where her father was detained as the applicant had claimed.
  10. The Tribunal had regard to inconsistencies in the applicant’s oral evidence to it as to whether her mother (who had not been arrested since 2006) resided at the family home or had been in hiding after 2006. It did not accept that the applicant’s mother was in fear of being targeted by the authorities in China.
  11. In addition, the Tribunal had regard to the fact that while the applicant had arrived in Australia in December 2007 she did not lodge a protection visa application until August 2009 and that although she claimed to be a committed local church believer, did not attend any church in Australia until (on her own evidence) January 2009 and had not provided any corroborative evidence relating to any such attendance prior to June 2009. The Tribunal considered the applicant’s explanations (work and study commitments), but was of the view that she had not been interested in attending local church gatherings in Australia because she “had never practised or been committed to local church beliefs prior to coming to Australia”. It was of the view that the applicant began attending local church gatherings in June 2009 “in preparation for lodgement of her Protection visa application in August 2009” and that the reference in her protection visa application to going to church in Lidcombe since her arrival in Australian was included to support her claim that she was a genuine Christian. It was also of the view that had the applicant been in fear of persecution as claimed, she would have lodged a protection visa application “much sooner” than she did.
  12. The Tribunal concluded that these matters collectively led it to reject the applicant’s claims that she was a local church believer in China or a local church believer in Australia. It did not accept that the applicant or her parents were detained in China as claimed or that she would practise the religion should she return to China.
  13. While the Tribunal accepted (on the basis of a supporting letter) that the applicant had been attending local church gatherings in Lidcombe since June 2009, it disregarded that conduct pursuant to s.91R(3) of the Act.
  14. The Tribunal concluded that it was not satisfied that “the applicant and her family members were local church believers, that she [would] practise this faith in the reasonably foreseeable future if she returns to China” or that “she [would] suffer serious harm for reasons of her religious beliefs or being imputed, due to her knowledge or for any other reasons, to be a local church believer.” The Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if she returned to China. It was “not satisfied that any of the applicants [was] a person to whom Australia ha[d] protection obligations under the Refugees Convention and affirmed the decisions not to grant the applicants protection visas.”

These proceedings

  1. The applicants sought review by application filed in this court on 31 May 2010. They rely on a further amended application filed in court on 26 November 2010. There are two grounds in the amended application which are as follows:
  2. Insofar as these grounds refer to s.424AA of the Act, counsel for the applicant clarified in oral submissions that the “nub” of the applicant’s complaint was that there was no meaningful opportunity for the applicant to respond to one of the matters raised by the Tribunal during the hearing. It was contended that because the Tribunal had not complied with the procedure in s.424AA of the Act, s.424A was applicable (as discussed in SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46) and that there had been no compliance with s.424A of the Act.
  3. It is convenient to set out the statutory provisions in issue in these proceedings. Relevantly, s.424A(1) of the Act is as follows:
  4. However s.424A(2A) provides that the Tribunal is not obliged to comply with the obligations under s.424A “if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA”. There are also specific exceptions in s.424A(3).
  5. Section 424AA is as follows:

(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

  1. Section 425(1) of the Act provides that: “The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.” I note, however, that counsel for the applicant stated in oral submissions that ground one was intended to refer to s.424A of the Act.
  2. English language transcripts of the hearings conducted by the Tribunal on 9 April 2010 and 28 April 2010 are in evidence before the court as annexures to an affidavit affirmed by Elisabeth Ann Hilton on 25 August 2010.
  3. The “matter” referred to in the particular to ground one that was said to have been put to the applicant pursuant to s.424AA was identified in the applicant’s submissions as relating to evidence given by the applicant about the local church during the Departmental interview (the “first issue”). One other “matter” (inconsistencies in information the applicant provided about her father’s religious activities after his release from detention in 2007) was also put to the applicant at the hearing. It was submitted that the applicant was not given the opportunity to respond to the first of these matters in accordance with s.424AA and that there was a failure to comply with s.424A of the Act and also a failure to give the applicant the opportunity to meaningfully respond to this issue.
  4. In its findings and reasons the Tribunal had recorded that during the interview with the delegate the applicant had been questioned about specific matters relating to the local church religion. It found that she was “unable to provide detailed answers to any of the questions put to her”.
  5. It was submitted that the applicant’s “perceived lack of detailed knowledge” of local church beliefs when questioned by the delegate was information that would be part of the reason for the Tribunal affirming the decision under review within s.424A(1) of the Act and that such information was not within the exception in s.424A(3)(ba) (which applies only to information that the applicant “gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department”). Counsel for the applicant submitted that this was information that was adverse to the applicant’s case and this had to be put to her in a manner that complied with s.424AA or s.424A of the Act.
  6. In support of this contention, reference was made to the findings of the delegate that when the applicant was questioned about the religious beliefs of the local church and her father’s persecution, much of her testimony was “vague, contradictory and unsubstantiated” and that when asked at the Departmental interview to elaborate on her religious beliefs “she provided responses characteristic of rehearsed answers to anticipated questions. When asked again to explain in her own words what Christianity has brought to her personally, she was unable to go beyond on those rehearsed answers and express in her own words how she felt about her religion”. It was submitted that this was information that, together with the tapes of the Departmental interview, was relied upon by the Tribunal. The applicant contended that the information in question was not simply part of the Tribunal’s reasoning process.
  7. It was acknowledged that in the adjourned Tribunal hearing conducted on 28 April 2010, the Tribunal had explained s.424AA of the Act and referred to the applicant’s interview with the Departmental delegate. However it was contended that the Tribunal had not complied with the obligations applicable where that section was invoked.
  8. It is relevant to set out first what occurred at the time that, and after, the Tribunal referred to s.424AA in the hearing. The following exchange occurred:
  9. After raising this matter the Tribunal continued:
  10. The applicant then answered: “It is true that since 14 to 15 years old I started to believe in the religion when I was at home”. However the Tribunal said to her:
Applicant: Yes
  1. Counsel for the applicant submitted that there seemed to be an understanding at that point that there would be a further response (not on the day of the hearing but at some other time), as it was said to be obvious that the applicant appeared to the Tribunal member to be quite upset.
  2. The hearing continued:
  3. The Tribunal then put to the applicant its concern about information she had provided during the Departmental interview in relation to her father’s religious activities after he was released from prison in February 2007. Counsel for the applicant submitted that what was said to be an inconsistency in the applicant’s evidence to the delegate at the interview and at the Tribunal hearing about whether her father continued to hold church meetings at home was adverse to the applicant and was within s.424A of the Act. However it was acknowledged that the applicant addressed this issue at the hearing.
  4. Such a response occurred in the following context:

Applicant: Now probably not. I did say same version and when my father was released he did continue to attend gatherings and Brothers & Sisters were worried that there would be some impact on my family so they change the location and moved the gathering to other Brother & Sister’s home.

Member: So you are responding to this now?

Is that what you wanted to do?

Applicant: You mean respond to those things you want to ask me

Member: Well you responded to this one

What do you want to do?

Do you want to send something in writing or you want to come back to the Tribunal or respond today?

Applicant: I want to reply today

Member: are you sure about that?

Applicant: Yes sure

Member: OK Why are you crying?

Applicant: I just feel why does nobody believe me and these things did happen in my family and maybe some of things when I said them I was nervous so I didn’t say them very well but these things did happen in China and I was indeed a Christian in China.

And indeed last Sunday when my father was released he was still lying in my Uncle’s home resting and he was beaten up all over and he has lost weight a lot and he’s now in his fifties. I don’t know what would happen to him in the future.

  1. The applicant submitted that what occurred in this exchange was clearly a response by the applicant to the second issue (her father’s activities after his release from detention in February 2007) but that the Tribunal had misconstrued this and had taken what she said to refer also to the first issue (that is her evidence to the delegate about her knowledge of the local church).
  2. It was submitted that this confusion on the part of the Tribunal remained up to the end of the hearing. The following exchange took place when the Tribunal member indicated that he was going to call the hearing to a close:
Tribunal: OK.
  1. It was submitted that the applicant was obviously uncertain about the procedure and the previous indication by the Tribunal regarding a written comment about the first piece of information and that this uncertainty could have been dispelled by a clear explanation that an oral comment could at that stage have been given concerning the first piece of information. It was contended that it must have been obvious to the Tribunal that no comment had been given on the first issue and that the applicant was not clear as to the mode of response expected.
  2. The applicant submitted that by not providing her with a meaningful opportunity to comment on the first piece of information the Tribunal fell into jurisdictional error as such a “meaningful opportunity to comment” lay at the heart of the Tribunal’s obligations under s.424AA and s.424A of the Act (see SZNKO v Minister for Immigration and Citizenship and Another (2010) 184 FCR 505; [2010] FCA 297).
  3. Counsel for the applicant submitted that, given that the Tribunal had chosen to proceed by way of s.424AA of the Act, in order to meet the requirements of that section the Tribunal was under an obligation to make things clear to the applicant. This appears to be a reference to s.424AA(b)(i), which obliges the Tribunal to “ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review”. It was also more generally submitted that there must be a
    “meaningful opportunity” for the applicant to respond, having regard to the Tribunal’s obligation to invite the applicant to comment or respond and also to advise her that she may seek additional time to comment on or respond to the information.
  4. In addition, the applicant submitted that the procedure adopted by the Tribunal pursuant to s.424AA was confusing and misleading, as “clear particulars” were not given of the information and the meaningfulness of the information requiring comment.
  5. In oral submission reliance was placed on what was said by Bromberg J in MZYFH v Minister for Immigration and Citizenship and Another (2010) 188 FCR 151; [2010] FCA 559. In issue in MZYFH was whether the Tribunal had met the obligations under s.424AA of the Act (there being no s.424A letter), in putting to the applicant at the hearing information that it was concerned about in telephone evidence from two priests who had refuted the applicant’s claims. However, in contrast to the position in this case, it was conceded by the Minister in MZYFH that the evidence received by the Tribunal from the two priests was “information” within s.424A of the Act.
  6. After discussing the approach taken to ss.424AA and 424A of the Act by the Full Court of the Federal Court in SZMCD and the approach taken to s.424A by Flick J in SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486, Bromberg J found (at [57]) that in the particular circumstances of the case before him the Tribunal had failed to provide clear particulars of the information in question. There was said to be a lack of sufficient specificity. His Honour was of the view that the wording employed by the Tribunal at the hearing lacked the necessary clarity in identifying whether its concern related to the whole of the evidence of the priests put to the applicant or simply to that part of it that directly refuted the applicant’s claims.
  7. In other words, in MZYFH the Tribunal had failed to identify clearly the information it was concerned about, or to ensure that the applicant understood why the information was relevant to the review as required under s.424AA of the Act.
  8. In addition, the Tribunal in MZYFH had put to the applicant that the information in question “could” form the reason or part of that reason. Bromberg J addressed this issue at [62] – [66]:
  9. His Honour was of the view that given the nature of the evidence, what was actually disclosed and the lack of specificity in that evidence, because the applicant was told the evidence “could” rather than “would” be the reason or part of the reason for affirming the decision under review the applicant may well have elected to respond immediately rather than take the benefit of the opportunity provided by s.424AA to seek additional time to provide a response. In other words the “full understanding of the gravity of what he was facing may well have impacted upon both the timing and the content of any response that the appellant chose to make” (at [68]).
  10. Counsel for the applicant submitted that in this case, as in MZYFH, the Tribunal’s approach had failed to ensure that the applicant was put into a position where she “could understand both the relevance and consequence of the information” and that such failure had denied her the proper opportunity to comment on or respond to the information which s.424A intended “that [she] should have” (MZYFH at [69]).
  11. It was also submitted that even if the Tribunal member had correctly assessed that the applicant wanted to respond orally to all of the matters put to her, the information still had to be put to her in such a way that there was an opportunity to meaningfully respond and that to state that the information “could” rather than “would” form part of the reason for affirming the decision under review did not technically satisfy the requirements of s.424AA of the Act.
  12. In oral submissions it was clarified that it was submitted that s.424A was applicable to the “information” particularised, that there had been no compliance with any of the methods provided for in s.424A or s.424AA of the Act for putting information to an applicant for comment and response and that hence there was a failure to comply with s.424A of the Act.
  13. When clarification was sought as to whether the applicant was also alleging a failure to comply with s.425, her counsel suggested that it was perhaps best not to express the applicant’s claim in terms of s.425, but rather as a failure to comply with s.424A of the Act. It was submitted that insofar as there was a lack of an opportunity to meaningfully respond there was a lack of procedural fairness as required by Division 4 of Part 7 of the Act (in particular under s.424A of the Act). Leave was sought (and granted) to amend the application to refer to s.424A (rather than to s.425) in ground one.
  14. In fact no further amended application was filed. Insofar as the applicant may be seen as maintaining any intention to assert a breach of s.425 of the Act given the absence of such a formal amendment, the requirements of that section were not addressed in the applicant’s oral or written submissions. Nor were any authorities in relation to s.425 cited in the applicant’s submissions (which addressed only ss.424AA and 424A of the Act). It is not, in any event, necessary to determine whether a “misapprehension” of the procedures in s.424AA of the Act, in circumstances where that section was properly invoked in relation to information within s.424A(1) of the Act, could itself constitute a breach of s.425 of the Act. For the reasons given below, the matter relied on in the particulars to ground one was not information within s.424A(1) of the Act. More generally, as discussed below, it has not been established that the Tribunal breached s.425 by a denial of procedural fairness in the manner in which it raised issues and discussed the possibility of a written response by the applicant to matters raised at the hearing.
  15. The solicitor for the first respondent submitted that there was no information subject to the s.424A obligation in this case. Insofar as it is relevant to have regard to the Tribunal’s reasons for decision, it was said to be clear that the Tribunal did not use information which the applicant orally gave to the delegate in the Departmental interview as the reason or part of the reason for affirming the decision under review. Rather, it was the applicant’s inability to provide detailed answers to questions at the Departmental interview (summarised earlier in the Tribunal decision) that was of relevance. Gaps and lack of detail do not constitute “information” within s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]) and do not have to be put to an applicant whether by the procedure in s.424AA or otherwise under s.424A of the Act.
  16. Similarly, what was said to be relevant to the Tribunal’s decision in relation to the applicant’s evidence to the Department about what her father did after his release from detention in February 2007, was not the evidence given by the applicant at the interview with the delegate, or indeed, the evidence given by the applicant at the Tribunal hearing as such, but rather the inconsistency between those items of evidence. Such an inconsistency is not “information” for the purposes of s.424A(1) of the Act (see SZBYR at [18]).
  17. While this was said to be a complete answer to both grounds in the further amended application, the Minister did not concede that there had in any event been any failure to meet the requirements of s.424AA of the Act or to comply with s.425 of the Act.
  18. It was submitted that when the Tribunal purported to undertake a course of oral disclosure pursuant to s.424AA of the Act, it proceeded in accordance with s.424AA, clearly explained the procedure to the applicant, gave clear particulars of the information in question, explained the relevance of the information and invited her to comment or respond orally at the hearing or at a later stage, including in writing. It was also submitted that the applicant evidently understood the relevance of the information and ultimately chose to respond at the hearing and hence that the procedure adopted by the Tribunal was in accordance with the requirement of s.424AA of the Act.
  19. As clarified at the hearing, the applicant’s contention is, in essence, that there was information to which s.424A of the Act applied, that the Tribunal did not comply with the procedures in s.424AA of the Act and hence that there was a breach of s.424A of the Act. As Tracey and Foster JJ stated in SZMCD at [73]:
  20. It is the case that at the hearing the Tribunal proceeded on the basis that there was information to which the s.424A(1) obligation applied in seeking to invoke s.424AA. However the fact that the Tribunal purported to invoke s.424AA is not determinative in relation to whether the material discussed was in fact subject to the s.424A obligation.
  21. Hence the first issue for consideration is whether or not there was information before the Tribunal which gave rise to the obligation under s.424A(1) of the Act. As Moore J stated in SZMCD (at [2]), if no underlying s.424A obligation arose, then any non-compliance with s.424AA would be of no legal consequence, in the sense that s.424AA is “not intended to create a duty to take particular steps independently of the existence of a duty under s 424A”. There would, of course remain for consideration any question of non-compliance with s.425 of the Act in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63, but that is not the basis on which jurisdictional error is said to have arisen in this case.
  22. The “pieces of information” said to give rise to a s.424A obligation concerned the applicant’s interview with the delegate of the first respondent and consisted of the applicant’s “perceived lack of detailed knowledge of Local Church beliefs when interviewed by the Delegate” and secondly “an inconsistency regarding the Applicant’s evidence at interview with the Delegate and hearing before [the Tribunal] about whether her father continued to hold church meetings at home after being released from detention” (as described in the applicant’s written submissions).
  23. The only evidence before the court of what occurred in the Departmental interview is the delegate’s account of that interview in the decision of 5 January 2010 and the Tribunal’s reference to that interview in the hearing (see [32] above) and in its reasons for decision.
  24. It is convenient to consider the second suggested piece of “information” first. It is the case that the Tribunal had regard to an inconsistency between the applicants’ evidence to the delegate and at the Tribunal hearing. However this inconsistency did not give rise to a s.424A obligation. As pointed out by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR at [18]:
  25. Hence any such “inconsistency” is not information subject to the s.424A obligation.
  26. Moreover, on the evidence before the court there is nothing in the applicant’s oral evidence to the delegate about what happened after her father was released from prison in February 2007, in particular that he continued to attend gatherings and to have gatherings at his home, that of itself amounts to “‘information’ that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” in the sense considered in SZBYR at [17]. That part of the applicant’s evidence in the interview did not contain in its terms “a rejection, denial or undermining” of the applicant’s claims to be a person to whom Australia owed protection obligations (SZBYR at [17]).
  27. Hence s.424A was not engaged in relation to such evidence or any inconsistency between that evidence and the applicant’s evidence to the Tribunal.
  28. As to the first “matter”, in oral submissions counsel for the applicant referred not only to the part of the Tribunal hearing (set out at [32] above) in which the Tribunal discussed the applicant’s Departmental interview with her (including the Tribunal’s reference to the delegate’s view of the applicant’s lack of knowledge), but also to the Tribunal’s finding that when the applicant was questioned by the delegate about specific matters relating to the local church religion she was “unable to provide detailed answers to any of the questions put to her”.
  29. Insofar as the applicant contended that the information to which s.424A applied was the Tribunal’s assessment of her evidence, in particular its view about her lack of knowledge about specific matters in relation to the local church religion, such an assessment does not constitute “information” within s.424A of the Act. The applicant’s submissions did not grapple with the limitations on the concept of “information”. However as Finn and Stone JJ were said in SZBYR (at [18]) to have “correctly” observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477; [2004] FCAFC 123 at [24] the word “information”:
  30. What was of relevance was not what the applicant said to the delegate about local church beliefs as such, but rather the fact that there were “gaps, defects or lack of detail or specificity” in her evidence, from which the Tribunal reasoned (as it said in the hearing) that the applicant was not “able to provide much information at all” and, as it found, that she was “unable to provide detailed answers to any of the questions put to her”. In other words the actual information given by the applicant to the delegate was not evidentiary material that would have been the reason or part of the reason for the Tribunal affirming the decision under review. Rather, it was the lack of detail (or the absence of evidence) that was of potential (and actual) relevance to the Tribunal.
  31. Further, the delegate’s view of the applicant’s knowledge was not information which gave rise to a s.424A obligation, notwithstanding that the Tribunal mentioned this to the applicant in the hearing (see SZBYR at [17] – [18]).
  32. SZNKO and MZYFH do not assist the applicant in this respect. What was in issue in SZNKO was whether details of the person who wrote an “identically worded” supporting letter in another case before the Tribunal, the entity from whence such letter had come or its date constituted “information” for the purposes of s.424A and s.424AA (SZNKO at [16] – [17]). However this not a case in which there is an issue as to whether the entire content of certain evidentiary material constituted information (or had to be provided as part of the requirement to give the applicant “clear particulars” of the information in question). Similarly, in MZYFH what was in issue was evidence provided to the Tribunal by two priests which was conceded to be adverse to the applicant and therefore relevant information within s.424A.
  33. As the matters relied on by the applicant in submissions in this case do not constitute “information” within s.424A(1) of the Act, there was no obligation on the Tribunal to give the applicant “clear particulars” of such material in order to meet s.424AA and thus avoid the need to comply with s.424A of the Act. There could be no breach of s.424A by the Tribunal, even if it did not strictly observe the procedures in s.424AA of the Act. That is so even if, strictly speaking, s.424AA requires use of the word “would” and not “could” in the Tribunal’s account of the consequences of information being relied on by it, as suggested in MZYFH.
  34. No failure to comply with s.424A of the Act is established.
  35. Moreover, insofar as the applicant maintains any general (although not specifically addressed) contention that there was a failure to comply with s.425 of the Act because the Tribunal’s procedure at the hearing was confusing and misleading, this is not made out.
  36. It was contended that while the Tribunal initially informed the applicant that she could respond in writing at the end of the hearing (which was said to be before the Tribunal received any response to the matter raised), it subsequently advised her that no further response was required.
  37. However it is clear from a consideration of the transcript of the Tribunal hearing relied on by the applicant, that when s.424AA was explained to her she was told that she could respond after a break on that day, or come back on another day to comment or respond, or that she could do so in writing or say nothing at all. The Tribunal identified the first issue of concern (the applicant’s inability to provide much information when the delegate asked her about specific parts of local church beliefs). Before going on to the second issue the Tribunal then reiterated:

... if you think it is going to be too much for you to think about and respond to today or to take a break and come back to me in a little while, you can go away and listen to the recordings of both the hearings and then send something to me in writing,

Or you could come back to the Tribunal on another day and tell me yourself.
What do you think?
  1. It is apparent that, at that point, rather than responding in relation to the procedure she wished to adopt, the applicant in fact responded to the issue that had been put to her about the delegate’s interview, claiming that “It is true that since 14 or 15 years old I started to believe in the religion when I was at home.” In other words when the Tribunal told the applicant that there were a number of ways in which she could respond, (and that she did not have to respond on that day), she did in fact respond. Nonetheless, the Tribunal then reiterated that the applicant had the opportunity to go away and “think about it”, thus addressing the possibility that the applicant had misunderstood or required more time. The applicant confirmed that she understood what the Tribunal member was saying. Such an exchange is not indicative of the Tribunal failing to provide the applicant with a meaningful opportunity to respond to its concerns.
  2. Despite the alternatives that were offered by the Tribunal to the applicant, the applicant chose to respond to the information in the hearing. When the second issue was put to the applicant she again responded to the substance of that issue.
  3. Moreover, the Tribunal asked the applicant whether she was responding “now” and if she wanted to reply in writing at a later hearing or “today”. The applicant responded “today”. It can be inferred (and there is no evidence to the contrary), that the applicant was telling the Tribunal that she understood that she had an opportunity to respond at a later time, but that she wanted to reply on that day.
  4. When the applicant was then asked why she was crying, she provided a response which may also be seen as addressing the first issue. As set out above she queried why no one believed her and reiterated that the things that she claimed did happen in her family and that perhaps some of the things she had said were because she was nervous and that she did not say it very well, but that these things did happen in China and that she was “indeed” a Christian in China. She also made claims about her father being beaten.
  5. Hence, contrary to any suggestion that there was no meaningful opportunity given to the applicant to respond to issues of concern to the Tribunal, she was given such an opportunity and there was in fact a response by her to the issues raised by the Tribunal.
  6. Further, any residual possibility that the applicant’s response was incomplete, or that she was confused or misled in some way by the Tribunal was addressed by what occurred at the end of the hearing, when the applicant raised the question of whether the Tribunal “still” wanted her to provide written comment and response. As set out above, the Tribunal stated:
  7. In this exchange, notwithstanding that the Tribunal has received some response to the issues it had raised, it not only gave the applicant the opportunity to make a further response (which she declined) but also expressly confirmed with her that she thought she had said all she needed to say. The Tribunal also made it clear that a decision would be made if the material from Amnesty International was not received by a specified date.
  8. The manner in which the Tribunal proceeded in this respect is not such as to demonstrate a misapplication of the procedures available to it under s.424AA that would constitute a failure to comply with s.425 of the Act or, more generally, any denial of procedural fairness. Nor, having regard to the whole of the Tribunal hearing, was the procedure adopted confusing and misleading. It has not been established that the Tribunal fell into jurisdictional error by failing to give “clear particulars” of information at the hearing in such a way as to deny the applicant a meaningful opportunity to respond.
  9. The Tribunal identified its concern that the applicant was not able to provide much information at all. It gave examples of specific beliefs in relation to which she lacked knowledge or was not able to provide much information at all to the delegate. It reminded her of the findings made by the delegate in this respect and so informed her that her lack of knowledge would lead to the conclusion that she had not been involved in the local church in China.
  10. The applicant did not address the degree of specificity required of a Tribunal in putting “determinative issues” to an applicant (as discussed in SZBEL). I note however that in MZYFH Bromberg J agreed with the approach taken by Flick J in SZMTJ albeit in relation to s.424A, that the greater degree of clarity in the particulars of information provided, the less exposition needed to convey the relevance of that information to the review, whereas the greater the uncertainty in the information provided the greater the need to explain why it may be relevant. It is notable that in this case the Tribunal spelt out to the applicant her evidence that she had never heard of God’s Trinity, could not say exactly what “complete salvation” was and referred to her answer to the delegate about “God’s Plan”, as well as putting to her what the delegate had concluded based on her lack of knowledge.
  11. Moreover, while the Tribunal stated that it wanted to raise certain information “which may be adverse to” her application that “could” (rather than “would” as is specified in s.424A) be the reason or part of the reason for the Tribunal affirming the delegate’s decision, in this instance (in contrast to the situation in MZYFH) the relevance of the applicant’s lack of knowledge about specific parts of local church beliefs was made clear, albeit by reference to the delegate’s findings. The Tribunal informed the applicant that such lack of knowledge indicated that she had not been involved in the local church in China. Indeed such a possible finding had already been raised by the Tribunal earlier in the hearing on 28 April 2010 when, after giving the applicant an opportunity to explain why she was not able to tell the delegate anything about the meaning of “God’s plan” and asking her if she could say what “God’s Economy” was, the Tribunal informed her that her answer was not correct and:
  12. In this case it cannot be said that the applicant was misled or confused as to the consequence of the information being relied on by the Tribunal – that is, that the information was relevant to whether or not the Tribunal accepted that the applicant had practised in the local church in China. Having regard to the whole of the Tribunal hearing, this is not a case in which the Tribunal “failed to ensure that the applicant understood the view that the Tribunal had arrived at, and the full gravity of the consequence of that view upon [her] claim” (cf MZYFH at [66]).
  13. In conclusion, there was no information subject to the obligation in s.424A of the Act. Even if there was an error in the way that the Tribunal expressed itself in invoking the procedures under s.424AA, that was of no consequence. Section 424A (and hence s.424AA) was not applicable. Moreover it has not been established that the manner in which the Tribunal proceeded at the hearing gave rise to a breach of s.425 of the Act or a denial of procedural fairness in a manner constituting jurisdictional error.
  14. As no jurisdictional error has been established, the application must be dismissed.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Barnes FM


Date: 17 February 2011

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