NASA v Minister for Immigration & Multicultural & Indigenous

Federal Court of Australia|2005-05-24|Before: Conti J

The context to submissions made on the present appeal to the Federal Court upon the appellant's application to raise grounds of appeal not presented to the Federal Magistrates Court 1 This is an appeal from the reasons for judgment and orders of a Federal Magistrate given and made on 8 June 2004, whereby her Honour dismissed the appellant's application brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal ('the Tribunal') made on 20 May 2003. The Tribunal decision had affirmed the decision of the Minister's delegate made on 30 May 2002 not to grant the appellant, his wife and his son a protection visa. The appeal was heard by me sitting as the Full Federal Court with the prior approval of the Chief Justice. 2 The appellant is a Chinese national who first entered Australia on a Temporary Business Visa on 25 February 1997. Over the next two or so years the appellant departed from and returned to Australia on five occasions, the last date of return being 29 July 2000. On 1 March 2002 the appellant, and his wife and son lodged an application for a protection visa with the Minister. I was informed by counsel for the Minister that although the appellant's wife and son do not have a current application on foot, only the appellant having appealed from the decision of the Tribunal, their eligibility for a protection visa depends on the success of the appellant's claim, since he was the original primary applicant and they are members of his family unit. 3 The appellate proceedings in this Court first came before me for directions on 13 July 2004, at which time the appellant appeared in person, though he had been represented by counsel at the hearing before the Federal Magistrate. The grounds of the appellant's notice of appeal then read unspecifically as follows: '(1) The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making that decision were not observed. (2) The decision involves errors of law.' 4 On that day, pursuant to Order 13 rule 2 of the Federal Court Rules, I gave leave to the appellant to amend his notice of appeal to the extent necessary to disclose error in the Federal Magistrate's decision, and to do so by 2 August 2004, and that the appeal be set down for hearing on 2 September 2004. The grant of that leave was not opposed by the Minister. On 24 August 2004 a document entitled 'Amended Notice of Appeal', which bore the date 28 July 2004, was filed with the Registry. The amended grounds of appeal were fourfold and expressed in general terms as to jurisdictional error. The specific grounds presented ultimately to the Federal Court were not at least specifically articulated to the Federal Magistrates Court below. 5 Prior to the commencement of the hearing of 2 September 2004 in this Court, both parties filed comprehensive written submissions, which were supplemented orally at the hearing. The appellant was represented by different counsel on the appeal to those who appeared on his behalf before the Federal Magistrate. The hearing of the proceedings was not substantially commenced on that day. That was because at the outset of the hearing, counsel for the appellant sought leave by notice of motion filed in court on that day to: (i) raise grounds of appeal not argued before the Federal Magistrate in at least the particular and specific terms by then sought to be articulated; (ii) adduce further documentary evidence in support of those grounds of appeal not presented to the Federal Magistrates Court; (iii) read an affidavit of the appellant explanatory of that motion; and (iv) obtain dispensation with compliance with Order 19 rule 2(1) of the Federal Court Rules for those purposes. The further evidence the appellant sought to adduce comprised the transcript of the Tribunal hearing held on 17 April 2003, which had not been in the possession of his previous legal representatives at the time of the appeal to the Federal Magistrates Court. Order 19 rule 2(1) of the Federal Court Rules requires a notice of motion to be filed and served before a Judge is moved in Court by a party for an order pursuant thereto. 6 The grounds of appeal the subject of that further amended notice of appeal were as follows: 'Grounds

The appellant's submissions on appeal 12 The elaboration by the appellant of the basis upon which leave to adduce the further affidavit evidence was sought was described in the appellant's written submissions filed 25 August 2004, as follows: '4. … The appellant seeks leave to raise the new ground on the basis that the [sic] such ground only came to light once a Transcript of the Tribunal hearing was obtained in the course of preparing for the appeal. It is submitted that the evidence as provided by the transcript is not contentious. Further, it is in the interests of justice that the point be decided. Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 at 428-429. It is submitted that the transcript illuminates a failing by the Tribunal to act in accordance with the requirements of the Migration Act 1958 (Cth) ('the Migration Act'). 5. The appellant now submits that the Tribunal's decision was manifestly unreasonable as it relied on its erroneous representation of the evidence provided by both the appellant and his witness at the Tribunal hearing. Further to this ground, the appellant submits that the Tribunal did not conduct a real review of his case and thus it was an unreasonable exercise of the power conferred upon it by ss 414(1) of the Act. Nor did the Tribunal comply with the Act's requirements under s 420 to conduct a fair review, acting in accordance with substantial justice and the merits of the case.' 13 As part of those written submissions, counsel for the appellant provided a table whereby, to adopt her description, 'extracts from the Tribunal decision and the transcript are juxtaposed to demonstrate the failings of the Tribunal to properly consider the evidence as provided at the hearing.' Upon the basis of the contents of that document, counsel further submitted that it is 'clear, if one has regard to the submissions which rely on the transcript, that such evidence could have resulted in a different outcome if so relied [upon]', and moreover that 'compliance with [the Tribunal's] duties under the Migration Act outweigh the public interest in the finality of litigation.' 14 A discussion of the applicable principles with respect to an appellate court's authority to permit a new ground of appeal to be raised was undertaken by the Full Federal Court (North, Merkel and Weinberg JJ), in a migration or refugee law context, in VAAC of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 176 (the emphasis indicated by bold letters was that of their Honours in VAAC of 2001): '23. An appeal court has power to allow grounds to be argued on appeal that were not argued before the primary judge. The proper approach to the exercise of this power was explained in H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 (H v Minister) per Branson, Marshall and Katz JJ at [6] as follows: "An appeal to this Court from a decision of a judge of the Court is an appeal in the strict sense and not an appeal by way of rehearing (Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 129;White v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 511). The appeal power is thus to be exercised for the correction of errors (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 per Gleeson CJ, Gaudron and Hayne JJ at para 21). This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance. In a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal (Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ at 7-8). In other cases, it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided (O'Brien v Komesaroff (1982) 150 CLR 310 per Mason J, with whose judgment the other members of the court concurred, at 319; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 per Mason P, with whom Gleeson CJ and Priestley JA agreed, at 645-646; Jones v Minister for Immigration & Ethnic Affairs (1995) 63 FCR 32 particularly per RD Nicholson J at 47)." 24. Their Honours, at pars 7-8, went on to make some comments regarding the policy considerations relevant where applications such as the present have become too frequent: "As Gibbs CJ, Wilson, Brennan and Dawson JJ observed inCoulton v Holcombe at 7: 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.' In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration." … 26. It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process. 27. Determining the appellant's prospects of success on the appeal requires consideration of the merits of the new ground. It is well established that the rules of natural justice require that a decision-maker bring to an applicant's attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 and the cases there cited.' The prejudice to the Minister here relates more to the finality and increased costs of litigation. The time of 'three or more justices' has not been here required of course to be spent, though the public interest in the finality of litigation is here pertinent. Whether the principle in Coulton should apply, to the exclusion of that in O'Brien, is not moreover a simple matter, in circumstances such as the present. 15 Prior to embarking on a consideration of whether it was 'expedient in the interests of justice' to allow the new ground to be argued and determined, their Honours in VAAC of 2001, observed that had the new ground of appeal sought to be argued before the primary judge it would not have involved the calling of any evidence in addition to that which was before the primary judge: see [25]. Unlike the situation in VAAC of 2001, the evidence now sought to be adduced in support of the fresh ground was not before the primary judge. It seems to me however their Honours' concern lay in whether or not they would become obliged to engage in findings of fact were leave to be given for the fresh ground to be argued. Similarly to VAAC of 2001, were leave to be granted to raise the additional grounds in the present appeal, the transcript evidence, whilst not before the primary judge in the sense of having been transcribed and thus held in the possession of the litigating parties and available readily for tender, was nevertheless accessible to both parties from the outset and more importantly, did not require a finding of fact to be made by me, in the absence of evidence challenging its authenticity. In granting leave to raise the new ground of appeal, the Full Court in VAAC of 2001 said that '… whilst the point now sought to be raised could have been taken before the primary judge, there was no element of deliberately standing by or of the appellant making a tactical decision not to pursue the argument'. Realistically the same observation inferentially may here be made. New legal representation obtained by the appellant, I would infer, took the view that aspects of the conduct of the Tribunal hearing required a close examination of the bases for the Tribunal's conclusions which I will shortly reproduce. The nature and extent of the prejudice to the Minister as the successful party in the Federal Magistrates Court is not an answer in any absolute or unqualified sense. The evidence in the form of the transcript was of course readily available and accessible to both parties. 16 Counsel for the appellant next proceeded to outline in more detail the matters raised by the amended notice of appeal. It was submitted that the Tribunal 'misrepresented or ignored the evidence provided by the appellant', and that '[a]s a result, the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations such that its decision was manifestly unreasonable'. In relation to that contention, I was referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, whereMason J (as he was then) said:x '…it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power… I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable".' That submission necessarily requires a detailed examination of the transcript, if it is to be conceivably made good. Counsel for the appellant next contended that the Tribunal 'made findings of fact on matters critical to the ultimate decision that were not reasonably open to it', namely the date at which the appellant began attending St Dominic's Roman Catholic Church in Homebush near Sydney and the extent of the appellant's activities with that Church. As will later appear, there is clear force in that submission. Thus it was contended that the Tribunal 'erred in law by making "findings in the absence of evidence"', counsel for the appellant further citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 and 359-360, and more particularly, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] and Luu v Renevier (1989) 91 ALR 39 at 47-48. A decision flawed by jurisdictional error, by reason of failure to comply with the principles of natural justice, was contended not to be a privative clause decision within s 474(2) of the Migration Act 1958 (Cth). The contrary was not seemingly put on behalf of the Minister, and I think correctly so in the circumstances relied upon by the appellant. 17 In Bond at 355, Mason CJ enunciated the following general principles as to the drawing of inferences in the context of administrative law challenges, which the appellant invoked: 'The question whether there is any evidence of a particular fact is a question of law… Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law… This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions… So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.' In Luu at 47, the Full Federal Court (Davies, Wilcox and Pincus JJ) formulated the related principle as to evidentiary support for a finding of fact necessary to ground or support a decision: 'The effect of a finding of fact by a decision-maker which is unsupported by the evidence must depend upon the significance of that finding. If the finding relates only to a matter of peripheral importance, the validity of the decision may remain unaffected. But where the finding is critical to the ultimate decision, it is impossible to sustain the decision.' It follows that in order to determine whether 'the making of findings and the drawing of inferences' were 'critical to the ultimate decision' of the Tribunal, thereby rendering that decision 'impossible to sustain', a close consideration of the nature and parameters of the Tribunal's findings is required. That is what counsel for the appellant has here sought to undertake. 18 The appellant's attack upon the Tribunal's decision highlighted the following factual findings by the Tribunal member for scrutiny; the same require close analysis, in the light of the nature and extent of the appellant's present submissions: 'In the present matter, the Tribunal finds that the applicant exaggerated his interest and involvement in religious activities to enhance his application. The applicant claims that he will be involved in proselytising in China. However, after discussing this claim with him at the hearing, the Tribunal is not satisfied that the applicant either intends to proselytise or that he has any interest in such activity. The applicant indicated to the Tribunal that he does not have the qualifications or training to engage in such activity and he has not demonstrated any interest in being trained as a person who could proselytise on behalf of the Catholic Church in China. Furthermore, when the applicant introduced the claim at the hearing, and the Tribunal discussed the matter with him, it became apparent that he had not given the matter any thought prior to the hearing. The Tribunal finds that the applicant fabricated the claim at the hearing to enhance his application. The applicant claimed at the hearing that he had a leadership role in the church he attends in Sydney. He stated that he has responsibility for organising "everything". However, after discussing this claim with the applicant, the Tribunal finds that he greatly exaggerated his responsibilities and importance within the church. The Tribunal finds that the applicant is responsible for some minor practical tasks, such as lighting and overheads, and rejects his claim that he has a prominent or leadership role with the church. The applicant claimed at the hearing that in China he may unwillingly become implicated with house churches. The Tribunal is not satisfied that this claim is credible. The applicant has actively avoided any involvement in unauthorised or illegal religious activities in China and he has not expressed an interest in being involved in a house church in the future. The Tribunal does not accept as plausible the applicant's claim that he may unwillingly become implicated with house churches in China. The applicant avoided those activities throughout his life and it is the Tribunal's view that he will do so again in the future. The Tribunal does not accept as credible the applicant's claim the [sic] he will be implicated in house church[es], either willingly or unwillingly, if he returns to China in the reasonably foreseeable future. … … The Tribunal accepts the applicant's claim, supported by the information from external sources cited above, that religious activists who oppose government regulation of religion, such as those who persist in proselytizing without obtaining government permission, have been targeted by the [Chinese] authorities. The Tribunal also accepts the applicant's claim that the underground church and its members have been subjected to human rights violations by authorities. However, the Tribunal is not satisfied that the applicant is either a religious activist or a person with a genuine interest in becoming a religious activist in the reasonably foreseeable future. The Tribunal is also not satisfied that the applicant has any interest or intention of becoming a member of an underground church in China. It is the Tribunal's view that the applicant is neither a radical or non-conformist Roman Catholic. The Tribunal finds that the applicant will not be involved in any religious activities in China which will attract the adverse interest of the authorities. Accordingly, the Tribunal cannot be satisfied that the applicant has a well-founded fear of persecution in China because he is a Christian or a Roman Catholic.' 19 Those findings were made towards the end of the Tribunal's reasons for decision, under the heading 'Findings and Reasons'. They were findings involving the rejection of the credibility of the appellant's claims advanced in his testimony to the Tribunal, being claims characterised by the Tribunal as fabrication, greatly exaggerated, and lacking in credibility. It is apparent from the text of those reasons that the Tribunal's adverse conclusions were drawn from the appellant's testimony rather than from any documentary material submitted to the Tribunal. In order to demonstrate that those findings were in truth 'unsupported by the evidence', counsel for the appellant prepared a comprehensive table which juxtaposed extracts from the Tribunal's findings with citations from the appellant's and the appellant's witness' oral evidence contained in the transcript of the Tribunal hearing, upon which the Tribunal member's above findings could conceivably be said to have been founded. That table contained two columns respectively headed 'Evidence as stated by the Tribunal' and 'Appellant's response as supported by the evidence recorded in the transcript'. I will not reproduce the entirety of the table as it appeared in counsel's written submissions but it is appropriate that I record the terms of each alleged discrete 'mistake and misrepresentation' made by the Tribunal of the evidence that is contended by counsel for the appellant by reference to the Tribunal's findings. Counsel for the appellant submitted that '[a]ll of those points, taken together, must be critical to a finding as to the appellant's involvement with the church, and thus any finding as to whether [the appellant] is the sort of person who will become a religious activist if he were to be returned to China'. Authority for this approach of the appellant was said to be the well known Full Court decision in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; at 221 Black CJ, with whom Spender and Gummow JJ agreed, made the following statement: 'A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.' 20 Particularly material to an understanding of the appellant's case conducted on the appeal was the testimony of Fr McGee given to the Tribunal. It was submitted to be entirely supportive, as well as explanatory, of the appellant's testimony to the Tribunal, which the Tribunal member nevertheless rejected. The account of that testimony appearing in the Tribunal's reasons was as follows: 'Father McGee stated that he knew the applicant for two years. He stated that [the appellant] and his family became members of the church at Easter 2002 after attending a twelve month Bible study course. The Tribunal commented that the Roman Catholic Church at Homebush conducted its business in Mandarin. He stated that Mandarin was the dominant language at the church and services were conducted in Mandarin. He was asked if he spoke Mandarin and he replied "a little". The witness essentially stated that from his observations he concluded that the [appellant and his family] were devout Catholics. He stated that he had not directly discussed religion with [the appellant] because of the language barrier. The Tribunal asked the witness to describe the applicant's official duties at the church. He stated he "looks after the overheads" which he clarified as "plastic transparencies".' 21 Counsel for the appellant submitted that there were eight instances of significant mistakes and/or misrepresentations of the evidence made by the Tribunal member below, each of which were such as to vitiate the Tribunal's decision the subject of the present appeal on the ground of jurisdictional error. I will summarise each of those consecutively below. It suffices to observe at the outset that the least that can be said of the foregoing summary of Fr McGee's testimony is that it was limited or confined to a significant extent. 22 Given the circumstance that the appellant's case constituted challenges to the fairness as well as to the adequacy of the Tribunal member's conduct of the review of the delegate's decision, I have found it to be necessary to reproduce much of the recorded text of the transcript of the Tribunal proceedings relied upon by the appellant inclusive of reasons for decision, as well as of the scope and substantial detail of the submissions of the appellant's counsel. Only by so doing in the particular circumstances of this case can there be gained an adequate appreciation of the nature and course of the conduct of the Tribunal proceedings by the Tribunal member the subject of the appellant's attacks.

First so-called 'mistake and misrepresentation' of the evidence propounded by the appellant 23 The first passage from the Tribunal's reasons for decision propounded as involving a mistake or misrepresentation of the evidence tendered to the Tribunal is said to be found at page 7 of the transcript of the hearing, in the following terms: 'The [appellant] stated that in 2000 he tried to find out about the church but he did not register as a member until August 2001. The [appellant] later stated that he first attended the church in August 2001.' The import of that finding, when taken in the context of the Tribunal Member's reasons as a whole, was contended to be to the effect that the appellant's patronage of the Catholic Church did not commence until August 2001. As I have already recorded, the decision of the Minister's delegate was made on 30 May 2002, the appellant having departed from and returned to Australia (that is to say, to and from China) on five earlier occasions since he and his family first arrived here. I should perhaps record at the outset that the appellant is a graduate from Shanghai University of Engineering School, having been employed in China as a senior marketing and overseas development manager. 24 The appellant's response to that finding was that he 'never testified that he first attended the subject Roman Catholic Church located at Flemington/Homebush in August 2001, and that instead, he and his family had been attending that Church for some time before he became a member of the Church. A reference provided by the Church to the Tribunal hearing (transcript page 31 line 11) recorded that the appellant began attending the Church in the year 2000. Counsel for the appellant cited the following passages from pages 6-7, 8, 23 and 25-26 of the transcript of the Tribunal hearing which consist of the appellant testifying through a translator and portions of Fr McGee's testimony: 'Member: … I want to start by just asking you a general question. I want you to tell me why you don't wish to return to China and what difficulties you anticipate there. Start when you're ready. Appellant: The reason is Roman Catholicism is controlled in China. My family, my parents, they are all fervent Christians. From day one, when I arrived in Australia, I already went looking for a simple church for Chinese people here. After a period of searching, I found a church in Flemington, the church used Mandarin language. Then I joined in their bible study - bible study, I joined in their bible study. Member: When was that? Appellant: More than two years ago, nearly three years ago. Member: When was it exactly, I mean not the date but more than two years, nearly three years; give me something a little bit more concrete than that. Appellant: Year 2000. Member: Is he saying 2000, or 2001? Appellant: I started contact with the church in year 2000. Member: In your statement you say that you started to attend activities held by a Roman Catholic church in Homebush West last August, which puts it at August 2001. Appellant: Correct. Member: So is what you're talking about now a different church or is it the same church? Appellant: It's the same church. Member: So you first started going there in August 2001? Appellant: Formally - formally registered as a member of the church. Member: What does that mean? Appellant: Because when I started contacting the church in year 2000 I did not have a full understanding of the church so got to gradually try and find out more about the church before you joined the church. (pages 6-7) … Member: So you started going - you officially joined this church in Homebush West in August 2001 - let's keep going from there. (page 8) … Member: … I don't want you to talk about circumstances in China, because I've got mountains of information, we've had this conversation before. I am interested mostly in what you tell me about the [appellant and his family] and their involvement in church activities and what you know about that. That would be the most valuable evidence you can provide. So you've known them for two years you said? Fr McGee: I met at - we met at St Dominic's Church, Flemington. Member: And, now, the applicant attends a church in Homebush --- Fr McGee: That's the same one. Member: Is it the same one? Fr McGee: It's the same one, yes. I call it Flemington, but I think actually technically it's Homebush --- Member: Homebush West? Fr McGee: --- I think it's West, yes, that's right. (page 23) … Member: You met two years ago, but you said they became members last year. Fr McGee: Yes, that is after one year of instruction and study. Member: When you say that they became members, is there a formal membership process? Fr McGee: There is. Member: Tell me about that? Fr McGee: They (indistinct) Baptism, which is the Greek word, I think, for being washed. Member: Yes, well I'm Greek and I was baptised, so - they were baptised last year --- Fr McGee: They were baptised, they were confirmed, and so they became full members of the Catholic community. Member: Did they attend the church - obviously [the appellant] did but did the other family members attend the church before that? Fr McGee: I don't know. Member: In the year before [the appellant] was baptised, you said that he received religious instruction; what does that involve, tell me about that? Fr McGee: That involves knowing, studying what the Catholic Church is about, why it exists, why people would want to become members. It comes to the person of Jesus Christ, studying who Jesus Christ was, what his claims were, seeing that these are reasonable. Member: And what sort of commitment is expected of somebody who embarks on this study course? Fr McGee: Yes. Well, during the study course, they are free to proceed or to pull out at any time. Nobody is put under any pressure. Member: Right. But I mean somebody who is generally interested, how - what sort of commitment do they have to --- Fr McGee: I understand it to be a lifetime commitment. Member: But I mean like what do they do, do they come in and discuss these things once a week or do they - is it on an ad hoc arrangement? Fr McGee: Do you mean the instruction period of one year? Member: Yes. Fr McGee: Yes. There is a structured instruction course of 12 months. Member: How often do people meet to --- Fr McGee: Every Sunday. Member: All right. Well, that's valuable, thank you. (pages 25-26)' Fr McGee was the appellant's only witness at the hearing of the proceedings before the Tribunal. 25 In the light of the Tribunal's finding that the appellant 'did not register as a member until August 2001' and that the appellant 'later stated that he first attended the church in August 2001', counsel for the appellant submitted that 'it was clear that the appellant didn't first turn up at the church in August of 2001'. Plainly the submission was correct, in the light of the testimonies of the appellant and Fr McGee to the Tribunal extracted above, and which the Tribunal member did not explicitly purport to doubt or reject. Counsel for the appellant submitted on that footing that the difference between what was testified to the Tribunal and what was recorded as a finding was significant because '(a) it goes to the way the member considered the evidence and (b) there is the consideration of the extent and depth of involvement with the church that all of these points when taken together are significant.' The testimonies of the appellant and Fr McGee were relevantly to the contrary of the Tribunal findings. A difference of one year or so in the appellant's commencement of association with the Church, involving the participation at least in a year's course of religious instruction, prior to joining the Church 'officially' in August 2001, was said to have been overlooked, misunderstood, ignored or implicitly rejected by the Tribunal member. There is substance in that submission of the appellant.

Second so-called 'mistake and misrepresentation' of the evidence 26 The second segment of evidence, said by the appellant to have been wrongly ignored, overlooked or rejected by the Tribunal member, being related to the first segment, concerned the time when the appellant first met Fr McGee. The Tribunal member recorded at page 10 of his reasons for decision as follows: 'After the witness had given his evidence, the applicant stated that he met Father McGee in August 2001 when he joined the church.' 27 Counsel for the appellant criticised that finding of the Tribunal as follows: 'The appellant did not state this. The Member appeared to misunderstand the evidence previously given by the appellant, and confirmed by the witness, that the appellant had attended the church for some time before he became a member. The appellant gave evidence that he contacted the church in 2000 and that he had to learn more before he could formally join. He then joined the study group in August 2001. The witness stated that he met the appellant around April 2001 and he later began studies. After the witness gave evidence, the appellant maintained that August 2001 was when he joined the study group.' In support of this submission, counsel for the appellant drew my attention to the following extracts from pages 27 and 28 of the transcript before the Tribunal: 'Member: All right. So - something's wrong in the dates. If Father McGee knew you for two years, that means you didn't go to the church in August 2001, it must have been in April 2001. So has somebody forgotten the date? Appellant: The date I joined the study group was August. Member: Okay. So maybe it was forgotten, did you forget? Appellant: Maybe. Member: All right, okay. (page 27) … Member: Anyway, look, August 2001, that's what you said, that's what you said today, we'll take that as the start date. (page 28)' That extract from the evidence given to the Tribunal, so counsel for the appellant submitted, exemplified 'the nature of the Member's approach to the appellant's evidence with which we're concerned'. There is further substance in that submission.

Third so-called 'mistake and misrepresentation' of the evidence 28 The third alleged 'mistake and misrepresentation' of the evidence on the Tribunal member's part was said to be 'significant', because as was submitted by counsel for the appellant, it demonstrated a 'clear finding that the appellant had exaggerated his role' at the Flemington Catholic Church. At page 7 of the Tribunal's reasons, the member recorded the following evidentiary findings: '[The appellant] stated that more recently he became a council member of that church and he was now in charge of "everything". … The Tribunal discussed with the applicant his claim that he organises "everything" at his church in Sydney. He provided vague responses to the Tribunal's questions each time repeating the claim. The applicant finally indicated that he was in charge of lighting and the public address system. The applicant explained that the church council consisted of a chairman, three deputies, and sixteen councillors. He stated that [he] was involved with the council in 2002 but he was officially elected one of the sixteen councillors two weeks prior to the hearing.' Those findings were submitted by the appellant's counsel to purportedly bear upon two issues raised on the appeal, first, that 'the role [of the appellant] [was] minimised by the Tribunal'; and secondly, that 'the Tribunal is saying that [the appellant] exaggerated.' 29 Counsel for the appellant cited the following passages, extracted from pages 8 to 10 of the transcript of the proceedings before the Tribunal, in support of that submission: 'Member: So you started going - you officially joined the church in Homebush West in August 2001 - let's keep going from there. Appellant: After joining the church, I put my whole heart and body, whole self, into the church to serve the church. Member: What does that mean? Appellant: That means I serve the church and the Lord with whatever I can do. Member: So what did you do? Appellant: Because I study wireless radio, cable - radio, from the Shanghai University professionally, I went to serve the church in their lighting, equipment, lighting, and join their activities, their organisation, and I'm now a member of the church council. Member: What are your duties with that council? Appellant: I'm responsible in organising all of the activities of the church. Member: Every single activity of the church, you organise it? Appellant: Sorry, I've got to clarify that. This whole council has a head and underneath has workers, so… I'm one of them. (I interpolate here to record that counsel for the appellant submitted that it was the interpreter, and not the appellant, who was in fact recorded in the transcript as having said "Sorry, I've got to clarify that."; hence my change of emphasis) Member: So is there an area, do you have an area of responsibility because I find it incredible that you organise every single aspect of that church. Appellant: Yes. At the moment, everything on Sunday besides the worship, I'm responsible. (However I interpolate the submission of counsel for the appellant that the Tribunal's characterisation of the foregoing evidence was that "[h]e says he was responsible for everything"). Member: What does that mean? In real terms what do you actually do? Appellant: Like, bible studies, like - yes - bible studies. Spiritual retreats --- Member: Stop. Last Sunday, what did you do? Appellant: The Lent, the Lent period - yes, okay, sorry. Last Sunday, the Catholic Church is having a period of Lenting, Lent, period Lent, and the coming Sunday is the Easter Sunday, Christ died, resurrected, so we all have to go into retreat in a church cottage, and I organise all those activities. Member: How many people at your church? Appellant: Normally around 100, but if there are big festivities, will be between 200 to 300, and they all speak Mandarin. Member: How many other council members are there? Appellant: Ninety, altogether 90. President, or chairman, two deputies, two to three deputies and 16 councillors. Member: So if you do everything, what do they do? I think that wasn't properly expressed. I assume that every member [in] the council has something to do, otherwise there'd be no point for them to exist. I am assuming you don't do everything, you have certain areas of responsibility. Appellant: Yes. (Thus counsel for the appellant rightly submitted that the appellant thereby "actually clarified… that he's not saying he's responsible for everything." Moreover, counsel continued in this context that "the appellant hasn't said it [i.e. that he does 'everything'] at every answer, so again, the evidence is being misstated [by the Tribunal] and this is critical evidence because it's central to the finding that [the Member] said [the appellant is] exaggerating his role…".) Member: You don't have to go through all of them. Just tell me your group, which group are you in? Appellant: Extra-curriculums. Member: Extracurricular activity? Appellant: Yes. All the activities of the church, this group of extra-curriculums, this group has to send someone to get involved. Member: To what? Appellant: To be involved in all the activities of the church. They have to send someone from this group to be involved. Member: All right. Let's drop this, because we're kind of wasting time on that at hand. I think there are more important issues to discuss…'. 30 The latter comment by the Member as to 'wasting time' led to the following further submission by counsel for the appellant: 'So there, the appellant has actually been cut off from providing information that the Tribunal then found against him as one of the reasons… that the appellant had exaggerated his role and is therefore not the sort of person who would be a religious activist.' It is unclear what the Tribunal member had in mind in his concluding remark '… there are more important issues to discuss'; precisely what issues the Member had in mind were not identified, however the member did proceed immediately to ask when the appellant became a council member. The Member's observation was seemingly at least inappropriate in the context in which it was made.

Fourth so-called 'mistake and misrepresentation' of the evidence 31 Under the heading 'Evidence by the witness', the Tribunal member recorded the following at page 10 of his reasons for decision: 'He [Fr McGee] stated that he knew the applicant for two years. He [Fr McGee] stated that [the appellant] and his family became members of the church at Easter 2002 after attending a twelve month Bible study course.' In apparent response, counsel for the appellant stated that 'this is correct but fails to mention Father McGee's next statement', to be found at page 24 of the transcript of the Tribunal hearing, as follows: 'Fr McGee: And since that time, [the appellant] has been a member of the community committee.' That testimony of Fr McGee was said by counsel for the appellant to be material, because 'Father McGee goes on to describe the responsibilities of the committee: that it discusses the community's program for the year and month by month.' 32 I was referred further to the following passage of the Tribunal's reasons for decision appearing on page 10 thereof: 'The Tribunal commented that the Roman Catholic Church at Homebush conducted its business in Mandarin. [Fr McGee] stated that Mandarin was the dominant language at the church and services were conducted in Mandarin. He was asked if he spoke Mandarin and he replied "a little". The witness essentially stated that from his observations he concluded that the [appellant and his family] were devout Catholics. He stated that he had not directly discussed religion with [the appellant] because of the language barrier.' That last statement led to the submission of counsel for the appellant that 'there is no such statement by the witness' recorded in the transcript, and further that '[h]e [Fr McGee] never said anything remotely like that'. 33 The Tribunal recorded at page 10 of its reasons (being immediately after the passage just cited) as follows: 'The Tribunal asked the witness to describe the applicant's official duties at the church. He [Fr McGee] stated that [the appellant] "looks after the overheads" which he clarified as "plastic transparencies".' Counsel for the appellant submitted that such a confined account of the appellant's evidence given to the Tribunal 'ignores the evidence in relation to the appellant's involvement in the community committee and the activities of that committee'. Certainly the appellant did refer at one point to plastic transparencies, and thereby seemingly to the modern feature of lighting through elaborate transparent plastic sheets, per medium of a glass projector plate and associated apparatus, readily seen in community-style rooms, but the purported minimisation of the appellant's active association with the church thereby implied by the Tribunal did further tend to misstate the appellant's testimony. In that context, Fr McGee testified to the Tribunal hearing as follows (at pages 24 to 25 of the transcript): 'Member: What does that involve? Fr McGee: It involves discussing the community's programmes, both for the year, and month by month. Member: What specifically does the applicant do as a member of this community? Fr McGee: Well, most of the discussion is in Mandarin so I'm just not - a lot of it goes over my head. Member: Are there - if you don't know, just say you don't know, but do you know what he - if he has any specific area of responsibility and what he does? Fr McGee: Yes, yes, I know what he does, and it is that he is looking after the overheads for the responses for the community, the hymns that are sung, the responses to the liturgy, he's been doing that for the last year. Member: By "overheads" you mean things that are --- Fr McGee: Plastic, yes, plastic transparencies. Member: Would you say that he's a regular member? Fr McGee: Yes. Member: What about the other members of his family? Fr McGee: Also. Member: Any other church-related activities that you're aware of that you haven't mentioned? Fr McGee: Not that I'm aware.' 34 Counsel for the appellant concluded her submissions in relation to this present segment by observing that: 'So again it goes back to what we were talking about before… - if [the appellant] is responsible for everything well we're talking about all the programs of their community, month by month and for the year but the Tribunal member makes no reference to that evidence in the paragraph in the decision. The only reference he says is in those last three lines of that paragraph that's referring to the overheads.' The record of evidence, so counsel for the appellant submitted, indicates that the appellant does indeed perform a 'leadership role in the church', and that '…again clearly the finding there is contrary to the evidence and omits crucial references to what that role is.' Properly understood in the contexts I have cited, there is force in that submission.

Fifth so-called 'mistake and misrepresentation' of the evidence 35 Counsel for the appellant then drew the Court's attention to the last two lines of page 10 of the Tribunal's reasons reading as follows: '… The adviser asked the Tribunal if he can provide someone else to verify the [appellant's] religious activities in Sydney. The [appellant] indicated however, that there was no one else who could verify his involvement with the church.' When reviewing the above statement in light of the text of the transcript of the Tribunal proceedings, counsel for the appellant pointed out that he 'didn't say there was no one else, he said - when asked if there was someone he said "not at the moment".' 36 Moreover a further segment of the transcript relevant to the present context of criticism was relied upon by the appellant as follows: 'Member: … is there somebody else from your church that is able to, you know, verify your appointment with that church, just as Father McGee helped, maybe with more accurate dates? Appellant: Not at the moment.' It may therefore I think be correctly said that the Tribunal's reasons thus criticised did fall short of a wholly accurate representation relevantly of the evidence.

Sixth so-called mistake and misrepresentation of the evidence 37 The sixth 'mistake and misrepresentation' of the evidence put forward on behalf of the appellant was headed '[e]vidence in relation to proselytising in China'. That area of the transcribed evidence of the appellant related to his experiences in China. The passage in the Tribunal's reasons, to which I was referred in this context, appears at page 7 as follows: 'The Tribunal asked the applicant to describe the harm he anticipates in China. He replied that if he went back to China it would be his duty to proselytise. The Tribunal asked him if he proselytised in Australia. He stated that he was not qualified to proselytise in Australia but maybe with a few years of study, he estimated four years, he may be able to proselytise here. The Tribunal asked the applicant if he was receiving training which would enable him to proselytise for the Catholic Church. He indicated that he was not involved in such training. The Tribunal asked the applicant if he ever expressed an interest in proselytising to members of his church in Sydney. He indicated that he had not expressed such an interest. The Tribunal asked the applicant why he found it inappropriate to proselytise in Australia but considered it "his duty" to proselytise in China. The applicant did not respond to the Tribunal's questions and he was unable to provide any meaningful reasons as to why he would proselytise in China or how he would achieve such an aim.' Counsel for the appellant in both written and oral submissions drew my attention to the following passage, commencing on page 16 of the transcript of the Tribunal hearing, in order to demonstrate error on the part of the Tribunal's reasons extracted above: 'Member: … Now I want you to speculate for me, I want you to imagine that you are back in China and I want you to tell me what you think will happen to you if you were there. Appellant: I have a principle, in I want to do something, I'll do the - do my best, and if I start at something, I will finish it. So now that I'm a real Catholic Christian, I should go and preach the Gospel. Member: Why - sorry, why? Appellant: It's our responsibility and obligation to let the people in the world know about Catholicism, so that more people can know Christ. Member: What if they don't want to know? If they don't want to know, what do you do then? (I interpolate to record that counsel for the appellant submitted that this response was 'just simply rude', and in this context she referred me to NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137, to which I will later refer; in my view the observation may be described as somewhat inappropriate or even insensitive in the circumstances) Appellant: Maybe a lot of people object but I try my [b]est. Member: Okay. Appellant: Just like the foreigners, the missionaries go to China to preach the Gospel. Member: Do you preach here, are you involved in any preaching here in Australia? Appellant: I think four years later after I've learn through all the things in the Bible that I've learn more, understand more, then I will get all my friends and tell all my friends to get them to come to church. Member: Okay. So the answer to my question is no, you're not involved in any preaching at the moment. Appellant: I am not qualified to preach at the moment because I don't know that much. Member: Okay. So what would qualify you to preach in China?... If you can't do it here, why can you do it there? Appellant: That's why I have to learn all these things about the Bible, rites and rituals of Catholicism, then I can go back maybe, not China, but anywhere, to preach. In China is not only the people who preach has to face trouble, just performing the mass will get you into trouble. Member: Okay. What I think I'll do now, give you a chance to rest a little bit.' 38 In the context of the evidentiary material extracted in the preceding paragraph, Counsel for the appellant submitted orally: 'the Tribunal did not ask if the appellant was receiving training. The appellant did not indicate he was not involved. The Tribunal did not ask if he'd ever expressed an interest. It asked if he's preaching now. The appellant did not indicate that he'd not expressed such an interest. He stated he had to learn more and he would want to preach.' Therefore, so counsel for the appellant further submitted, the extract from the Tribunal's decision, reproduced at some length in the preceding paragraph of these reasons as to '… what the claim was, in no way reflects that exchange you find…. [in] the transcript. It just simply doesn't reflect it. There was no discussion of training or not training.' Counsel further emphasised that 'the appellant says he would like to preach and he'd like to learn more and we've already had evidence he went to study for a year and he's seeking to learn more.'

Seventh so-called 'mistake and misrepresentation' of the evidence 39 The seventh 'mistake and misrepresentation' by the Tribunal member of the evidence adduced before him concerned the subject as to whether or not the appellant would be implicated with 'house churches', if he was forced to return to China. That topic was purportedly addressed at pages 16 to 17 of the Tribunal's reasons as follows: 'The applicant claimed at the hearing that in China he may unwillingly become implicated with house churches. The Tribunal is not satisfied that this claim is credible. The applicant has actively avoided any involvement in unauthorised or illegal religious activities in China and he has not expressed an interest in being involved in a house church in the future. The Tribunal does not accept as plausible the applicant's claim that he may unwillingly become implicated with house churches in China. The applicant avoided those activities throughout his life and it is the Tribunal's view that he will do so again in the future. The Tribunal does not accept as credible the applicant's claim that he will be implicated in house church[es], either willingly or unwillingly, if he returns to China in the reasonably foreseeable future.' 40 Counsel for the appellant submitted that '[s]uch finding fails to consider the nature of the appellant's claim, namely that he has become a devout Roman Catholic in the time since he has left China so his involvement or otherwise with house churches in China prior to coming to Australia was not relevant in the circumstances'. The submission continued to the effect that the Tribunal tended to merge the appellant's prior activities and behaviour patterns, during his residence in China, with what the appellant would find himself obliged to undertake upon his return to China, in particular in the light of his Christian experiences and undertakings which had occurred since his arrival in Australia. There is also substance in that complaint. 41 Moreover in relation to the latter passage cited from the Tribunal's reasons, counsel for the appellant submitted further that it was not the appellant, but his so-called 'adviser', that actually claimed the appellant would be implicated with house churches, the 'adviser' apparently being Fr McGee. The point thus further made by counsel for the appellant was that it is evident from the Tribunal's response to the evidence about what he would do if he returned to China (being to the effect 'you didn't do it before so it is unlikely it is going to happen in the future') that the Tribunal misunderstood the nature of the appellant's claim. Given the credibility of the appellant's case as to the increased level of religious involvement in his lifestyle since his arrival in Australia, that point was well taken on behalf of the appellant. I remind myself, as I have earlier recorded, that the appellant's family origins in China were religiously based in Catholicism. I was referred by counsel for the appellant to the situation addressed in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, where at [26]-[28], Gummow and Callinan JJ said as follows: 'At the outset it should be pointed out that the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason. The Tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of "businessmen in Russia" was a reason for his persecution and relevantly nothing more. The Tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals. It seems to us that had that question been addressed it would in all likelihood have permitted of one only answer, an affirmative one. This is so because the Tribunal accepted Mr Dranichnikov as a witness of credit, and therefore the correctness of his account of his activities, and their climax, the violent assault which he suffered.' Here the appellant contended that the Tribunal member failed to determine that fundamental question relating to the appellant's membership of a class. In circumstances where a putative refugee comes from a particular religious faith, the circumstance of an increase in the nature and intensity of adherence to that faith engendered since arrival in Australia may tend to verify and lend force to the significance of an applicant's case for refugee status. 42 My attention was also directed by counsel for the appellant in the present context to the reasons for judgment of Kirby J in Dranichnikov, in order to exemplify the principle, said to be here attracted, namely that 'a failure to respond to the claim as articulated in that case constituted a constructive failure to exercise jurisdiction'. At [88]-[89] his Honour said as follows: 'Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way. The applicant has established a constructive failure on the part of the Tribunal to exercise its jurisdiction and power in reviewing the decision of the delegate. Prima facie, he is therefore entitled to the issue of the constitutional writs that he seeks and the associated relief of certiorari to make such writs effective.' The appellant's case advanced on the appeal involved the contention that there was here a constructive failure by the Tribunal to exercise jurisdiction by virtue of the Tribunal's inadequate response to the appellant's claim to refugee status. There is I think force in that contention and I refer in that regard to what the Full Federal Court (French, Sackville and Hely JJ) said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45]: '…If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.'

Eighth so-called 'mistake and misrepresentation' of the evidence 43 This eighth 'mistake and misrepresentation' submission put forward on the appellant's part was purportedly based on the following two passages from the Tribunal's reasons (at pages 9 and 10): 'The applicant submitted two forms which he explained were applications to extend the PRC passports of his wife and son. He stated he took those forms to the Chinese Consulate on 11 October 2002. The applicant stated that a consular official at reception examined the expired passports and asked him why his wife and child had been issued with a Bridging Visa. He stated that he told the official that they had applied for a Protection Visa. The applicant claimed that the official was angry and told him that the passports would not be renewed. He claimed that the official further told him that he and his family would have to write a letter of repentance and confession if they wanted to return to China and when they returned they would be arrested and investigated. … The Tribunal commented that not many citizens admit to their governments that they applied for refugee status. It commented, however, that the PRC government is aware that many of its citizens returning from Australia are failed protection visa applicants.' 44 Counsel for the appellant submitted in that context that '[t]he appellant does not contest the Tribunal's account of his evidence', but that '[h]e does, however, contest the Tribunal's account of its own response to this evidence.' The appellant further submitted moreover that as appears at pages 33, 34 and 38 of the transcript of the hearing before the Tribunal, '[t]he Member rephrased the appellant's account several times, in increasingly confrontational tones', as follows: 'Member: …why did you go to the Consulate and just say to them, "by the way, my wife and son have got a protection visa application", which would implicate you? Appellant: And when they ask me question, I can only answer with truth. Member: It's an odd thing to do. It's an odd thing to do for a person on a protection visa to go to the Consulate and say, "We've applied for refugee status". Now, on the one hand, you may have been extremely naďve… On the other hand, you could've… done it to bolster your protection visa application. And at this point I'm not even sure that you actually did it, that it happened. Now, so, basically what you are saying to me is that the Consulate… in Surry Hills knows that your wife and son have applied for a protection visa. So if I got somebody from our research department to ring them up and say, "What's going on, what's your policy, what do you tell people?", I wouldn't be telling them anything they don't already know? And, my last question is, after this person, whose name you don't really know, or his position you don't know, did you do anything other than just speak to him, or did, as soon as he said to you, "Now you've applied for a protection visa, go away," you followed his instructions, or did you contact anybody else in the consulate? Appellant: At that moment, I dare not say anything, because I knew that we might be in trouble. Member: Did you talk to your adviser before you went off to the Consulate to admit to them that you applied for a protection visa? Appellant: No. No, I didn't go and discuss it with my adviser, because I thought this is some identification document the Consulate should let us extend. Member: Did it occur to you that it wasn't a clever thing to do? Appellant: I didn't think about this. Member: Okay. Look, I mean, unless you really are very naďve, I don't think I'm going to accept this as being a totally innocent and unwise mistake on your part. You apply for a protection visa, you are blaming the country of terrible crimes, and you just go up to their Consulate and say, "Oh, yeah, we apply for protection, because, you know, you persecute people". That does not make sense to me… This really makes me question everything about your application, because, you see, there is something - there is something odd about your application. First of all, you are coming and going in this country for years and years and years, and then, just when it's all about to end, you decide to become a Catholic and then you apply for a protection visa, and then you come here and you tell me that if you went back to China, you're just going to go and preach the word and become an evangelist and risk your life, and then you go [to] the Consulate and you tell them you've got a protection visa. It all seems a fairly calculated and contrived way of trying to get a protection visa. Do you want to say anything? Appellant: The incident at the Chinese Consulate was out of my expectation, because I thought being a Chinese citizen, I have the right to get the extension of the passport. And it's a habit of mine from when I was young, that when I'm asked question I always tell the truth. … I just want to say the motive of me going to apply for that renewal of passport was just to have a piece of identification just like if your driver's licence expire, you go and apply for renewal, it is something that we use for everyday living as a means of identification. Because without that passport, when we go to the bank or anywhere, you won't be able to do anything because it's expired. I didn't look at it as a tactic or a kind of a means to obtain this visa. Member: Look, at the very least, you were very unwise. I mean, you don't put an application in accusing a government of all sorts of atrocities and then go and tell them that you've done that. I mean, it's not a very clever thing to do. Appellant: I admit I didn't know anything about that at all.' The text of the above questioning of the Tribunal member and of his comments and criticisms articulated to the appellant may be fairly described as unnecessarily confrontational, as well as not soundly conceived. In any event, moreover, the questioning in some instances involved the compounding of several aggregated questions relating to contextually different subjects, thereby tending to render responses from the appellant that were somewhat confusing. 45 Counsel for the appellant submitted in the light of the foregoing 'mistakes and misrepresentations' inherent in the observations and comments of the presiding Tribunal member, made in the course of his conduct of the Tribunal hearing, the findings and conclusions of the Tribunal should be seen to be 'infected by jurisdictional error'. My observations and findings tend to lend support to that submission. 46 Counsel for the appellant submitted further that the Tribunal member's findings, which I have earlier substantially reproduced in [18] above, to the effect that 'the applicant exaggerated his interest and involvement in religious activities to enhance his application', and moreover that it was 'not satisfied that the applicant is either a religious activist or a person with genuine interest in becoming a religious activist in the reasonably foreseeable future', followed upon misstatements by the Tribunal of the evidence given both by and on behalf of the appellant as to:

(iii) the appellant's preaching of Christianity in China; and

(iv) the information provided by the appellant's witness (Fr McGee).

There is I think substance in that submission. 47 The appellant also contended that the finding of the Tribunal as to fabrication by the appellant of his claims (see again the first paragraph extracted in [18] above) 'does not correspond with the evidence of the appellant'. The following matters were exemplified in the context of that submission by counsel for the appellant:

(i) '[t]he appellant volunteered the information that he was not yet qualified to preach';

(ii) the appellant 'was not asked whether he was interested in being trained'; and

(iii) '[t]he appellant's replies indicated that he did have an interest in preaching but wanted to learn and understand more'.

Each of those themes attributed to the appellant was in my opinion duly reflected by the thrust and essence of the evidence placed by him before the Tribunal. 48 Counsel for the appellant submitted further that the finding of the Tribunal at page 16 of its reasons, to the effect that the appellant 'greatly exaggerated his responsibilities and importance within the church', and further that he was only responsible for 'some minor and practical tasks,' did not fairly or reasonably reflect the evidence of both the appellant and Fr McGee 'in relation to the appellant's participation in the church's community council and the role of that council'. There is also substance in that submission. 49 Under the heading 'Findings of fact were critical to the decision', counsel for the appellant submitted in writing as follows: '18. The Tribunal's erroneous findings were critical to its decision. The findings against the appellant all related to whether it was credible that a person such as the appellant would become a religious activist if returned to China such that he could attract the adverse attention of the authorities. The Tribunal accepted that such people may be subjected to persecution. The decision thus turned on the findings in relation to the appellant himself. 19. The breach of procedural fairness was effective as it cannot be said that a different result would not have been reached if the Tribunal had correctly reviewed the appellant's evidence as the various facts found formed a chain of reasoning leading to the Member finding that the appellant's claim was not credible: Curragh Queensland Mining Limited v Daniel and Others (1992) 34 FCR 212 at 221. 20. Further, it cannot be said that a different result would not have ensured if the Tribunal had conducted a proper review of the case including, inter alia, allowing the appellant to provide further evidence as to his activities with the church council. Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 per Kirby J at [131]-[132].' Once more I think that there is substance in those submissions.

Appellant's submissions on the conduct of the Tribunal Member 50 By way of conclusion, under the heading 'Submissions in relation to conduct', counsel for the appellant submitted as follows: '21. The conduct of the Tribunal was such as to deny the appellant a fair hearing. When taken together, the confrontational approach of the Member, the comment that they were "wasting time" while discussing an issue that was subsequently critical to the Member's findings, and the misrepresentations of the evidence provided by the appellant resulted in a failure to conduct a hearing in accordance with the Act. 22. A similar situation to that which occurred in this case, prompted the following observations from His Honour Hill J in NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137 at [16]: "I appreciate that Tribunal members are under a great deal of pressure. They are required by the Migration Act 1958 (Cth) ('the Act') to undertake a review that is fair, just, economical, informal and quick, not bound by technicalities, legal forms or rules of evidence but must act according to substantial justice and the merits of the case (s 420). Tribunal members often conduct a number of hearings in a day and make decisions which may be life and death decisions, hearing evidence and arguments from applicants, not all of whom tell the truth but all of whom are under considerable stress. It would not be unlikely if Tribunal members over time became somewhat jaded in the approach they take to the very important role conferred upon them by the Act but if so, they should endeavour to overcome this. Her or his case deserves to be properly considered on its merits. Without that consideration there will, in law, be no review." 51 I should record for completeness thatHill J came to the following conclusion in NAQS, under a sub-heading 'Was there a review?', being a conclusion to similar effect here pressed for adoption by the Court on behalf of the appellant: '63. The Act confers upon the Tribunal the obligation on the application of an applicant to review decisions made by the respondent refusing a protection visa: s 414(1) and see s 411 of the Act. 64. The Act does not contemplate that the Tribunal will merely engage in a pretence. It contemplates that the Tribunal will in accordance with the Act take account of any evidence of the applicant and submissions which the applicant may make: s 425. 65. What happened in the present case is, in my view, so extreme that the only conclusion open to me is that the Tribunal did not conduct a review at all. It interrupted the applicant and did not permit the applicant to give explanations. It refused the applicant the opportunity of calling witnesses. In so far as the member appeared to be participating in a review at all she appears to have done so with a closed mind such that I would find she exercised bias in the sense used by the cases. 66. The various matters, the subject of the individual submissions discussed when taken together with the transcript, leave me with only one conclusion and that is that the Tribunal member did not attempt a hearing which had the characteristics required by the Act, that is to say to be actually a review which is fair and in which the Tribunal reviews the decision refusing the applicant a protection visa acting according to substantial justice and the merits of the case.' I would not here use the description so extreme; I would prefer the description 'of such a nature and specification'. However I would reach similar conclusions to those contained in [66] of Hill J's reasons for judgment in NAQS just extracted.

The Minister's case in summary by way of response 52 As I have already outlined, counsel for the Minister strongly opposed the appellant's application for leave to further amend the notice of appeal, upon the basis that the amendments sought to agitate matters of substantial complaint not raised before the Federal Magistrate below. According to the description of counsel for the Minister, those agitated matters may be summarised as follows:

(i) the Tribunal 'failed to understand or properly summarise aspects of the evidence of the Appellant and a witness, leading to a decision which was "manifestly unreasonable" and findings being made in the absence of evidence'; and

(ii) the 'presiding member behaved poorly at the hearing, leading to a failure to conduct a proper "review", or a failure to afford natural justice' to the appellant.

As may be seen from the submissions of the appellant those issues were not raised by the appellant in the Federal Magistrates Court, or at least substantially so. Nor could any such submissions have been made upon any adequate basis, without access to the entire record of the Tribunal hearing which the different counsel for the appellant engaged in the Federal Magistrates Court did not acquire at the time of that hearing.

53 Counsel for the Minister acknowledged that the Court had authority in principle to receive the transcribed evidence furnished to the Tribunal, pursuant to s 27 of the FCA Act, but contended that the Court should not do so for the following five reasons:

(i) the appellant had not complied with any of the procedural requirements prescribed by Order 52 rule 36 of the Federal Court Rules; moreover the Court did not have the benefit of sworn evidence by way of explanation as to why the transcript of the Tribunal hearing was not tendered to the Federal Magistrate;

(iii) no explanation had been offered as to why a transcript of the Tribunal hearing was not tendered to The Federal Magistrate below, except that it was not considered necessary to obtain a transcript until the appellant's present counsel entered upon preparation of the appellant's case for the current appeal;

(iv) although it may be accepted that the transcript was not in existence at the time of the trial, it did not follow that the evidence was ultimately unavailable in any relevant sense at that time, since the tapes from which the transcript was made must have been in existence: cf Wilson v Official Trustee in Bankruptcy [2000] FCA 304 at [35]-[36] and [42]; and

(v) in any event, the transcript 'is not sufficiently cogent to warrant its acceptance as evidence in an appeal'.

In the circumstances I am not persuaded that the foregoing segment of submissions should be accepted, at least such as to require dismissal of the appeal. There is no suggestion that the transcript in the appellant's possession was not entirely authentic, or that the critical conduct of the Tribunal member sought to be impugned, being conduct by way of statements and observations on his part made in the course of the Tribunal hearing, did not occur. 54 Moreover counsel for the Minister submitted that a 'separate but related question arises as to whether the appellant should be given leave to rely on completely new arguments at this stage'. On the authority of Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 at 429, this 'separate but related question', it was rightly submitted, 'also requires an exercise of discretion by the Court.' In Teoh, what was raised by the putative refugee appellant in the Full Federal Court was described by the Minister as a question whether a previously abandoned issue, not involving factual controversy, should have been precluded from reinstatement. Counsel for the Minister submitted therefore that the requisite leave should not be granted by the Court to the appellant, for the following reasons, which I will further cite literally for the purposes of precision:

(i) '[i]f the transcript is not received into evidence, the new arguments cannot succeed and leave should be refused on that basis; even if the transcript is received the new arguments do not have a sufficient prospect of success to make it "expedient and in the interests of justice",' thereby citing Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788;

(ii) '[w]hile fairness to the appellant is an important consideration, the Court must also bear in mind the long-established principle that parties are generally bound by the cases they advance at trial; that principle reflects an important consideration in the administration of justice: the finite resources of appellate courts are not to be used to determine issues at first instance, unless there are powerful reasons for doing so'; and

(iii) '[t]he "special circumstances concerning the children", which led the Full Court in Teoh to permit the raising of a new issue [at 429], are not present here.'

I observe in relation to the third contention of the Minister above that the appellant's infant son, as well as of course his wife, are necessarily affected by the outcome of the present appeal. All three were parties to the Tribunal proceedings, and there is no suggestion, whereof I am aware, otherwise than that the family unit remains intact. Moreover I should add that the appellant did not have the benefit of legal representation at the Tribunal hearing. 55 As will become apparent from counsel for the Minister's further submissions on the fresh evidence issue, the question of granting leave to adduce fresh evidence involves similar considerations to the issue whether to grant leave to present a fresh ground of appeal. In relation to the fresh evidence issue, the Minister drew attention to a restatement of the applicable principle appearing in Guss v Johnstone [2000] FCA 1455. In that appeal, Sackville J (with whom Drummond and Dowsett JJ agreed) said at [30]: '… it is ordinarily necessary for the party seeking to adduce further evidence to demonstrate that the evidence relied on is cogent; that is, the Court exercising appellate jurisdiction needs to be satisfied that the proffered evidence would be likely to have produced a different result had it been available at the trial.'

That statement of principle, according to his Honour, follows from the majority judgment in CDJ v VAJ (1998) 197 CLR 172 at 202-203 (McHugh, Gummow and Callinan JJ) extracted in [33] of Sackville J's judgment, where their Honours gave the following consideration to the operation of s 93A(2) of the Family Law Act 1975 (Cth) (and according to Sackville J, by implication, also to s 27 of the Federal Court Act as well), namely that it was:

'highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. [W]e cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purpose of s 93A(2).' (emphasis added in the same way as was added by Sackville J) 56 Sackville J concluded in Guss at [42] that the 'appellant has not shown that the proffered evidence is sufficiently cogent to be admitted pursuant to s 27 of the Federal Court Act'. My attention was further drawn by counsel for the Minister to the preceding paragraph of his Honour's reasons where the following appears: 'I should add that, even if the appellant had satisfied the test of cogency, he would have had to overcome strong discretionary considerations militating against the admission of the further evidence. The majority judgment in CDJ v VAJ suggests at (203-204) that the exercise of the discretion conferred by provisions such as s 27 of the Federal Court Act, although not to be limited by rigid rules, may be informed by factors such as the availability of the evidence at the trial and the need for finality in litigation.' 57 Counsel for the Minister drew my attention further to the Full Federal Court decision in Wilson v Official Trustee in Bankruptcy [2000] FCA 304 (Finn, Marshall and Goldberg JJ). After reproducing a number of passages from CDJ, that decision concluded at [42] as follows: 'It cannot be said therefore that Mr Farthing's evidence is fresh or further evidence. Although it might be said that he did not express the view at the time he spoke to Mr Wilson in 1984 that the state of the hotel which he then observed must have existed for some considerable time and would have existed at the time of the commencement of the applicants' occupation of the hotel, the point is rather that the existence of Mr Farthing was known to Mr Wilson and his solicitor as was the fact that he had given a detailed report on the structural condition of the hotel from which conclusions might be drawn. His Honour was therefore bound to refuse the application for leave to rely on Mr Farthing's evidence.'

'[I]n this case', counsel for the Minister continued, 'there is no suggestion… that a transcript could not have been obtained for the trial if the appellant had sought to rely on it… The appellant had been at the hearing and knew what had been said. Everybody knew that there were tapes of it there which were able to be listened to and introduced into evidence. So it is not fresh in that sense.' It will be recalled nevertheless that the appellant had not been legally represented at the Tribunal hearing; moreover I agree that the transcript was not in one sense fresh evidence, but that point thus does not, from one perspective, assist the Minister.

58 Counsel for the Minister also cited Water Board v Moustakas (1988) 180 CLR 491 at 497, where in the joint judgment of Mason CJ, Wilson, Brennan and Dawson JJ, the following appears: '… a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.'

In one sense, it may be said in the present context that all the facts have been established beyond controversy, in that the transcript of the Tribunal evidence has always been on the record in the sense of being available for printing on request. Be that as it may, counsel for the Minister submitted that the above passage:

'…indicates a link between the new evidence point and the new grounds point. The fact that both have to be raised really in my submission counts against both... The new point or the new points my learned friend seeks to raise are points that open up factual issues that weren't canvassed in the [Federal] Magistrates Court. They thus fall within the description in Moustakas. They could possibly have been met by calling evidence below… When their Honours talk in Moustakas about a point that might have been met by evidence below this is a concern arising partly obviously from fairness to a respondent but in my submission not only from that consideration. It's not only a question of fairness but also a question of the distinction between first instance and appellate proceedings. If an appellant wishes to take the court into a realm that requires further new factual inquiry there is a very strong presumption that this is not what an appellate court is here for. What your Honour is faced with is a new case, new counsel, a fresh mind brought to the matter, not an appeal in fact but an attempt to have another go at the first instance application and even if it has some strength… there would need to be very strong reasons for an appellate court to embark on that exercise.' In the present case, merely seeking to introduce into evidence on an appeal the transcript of the evidence at first instance cannot be described accurately, or at least literally, as open[ing] up factual issues that were not canvassed in the Federal Magistrates Court. I have of course earlier made that observation. 59 I have kept in mind the foregoing exegesis of conceivably or potentially relevant principles provided by counsel for the appellant in reaching my conclusions upon the difficult and complex issues raised in the context of this appeal. It involves an analysis however with which I have found difficult to align, or at least wholly accurately align, with the substance and thrust of the appellant's case and supporting evidence submitted to the Tribunal on his behalf, in particular by Fr McGee. 60 Counsel for the Minister contended in any event that the evidence provided by the transcript of the Tribunal hearing, and 'the new arguments based upon it', were not sufficiently powerful to warrant the grant of the leave required by the appellant to pursue the present appeal. Alternatively if that leave was to be granted, the appeal should nevertheless be dismissed. 61 As to the misstatements of the evidence the subject of the appellant's contentions, the Minister submitted that some of the instances, which the appellants were said to have 'seized on', comprised statements made by the Tribunal in summarising the appellant's evidence, and which did not form part of the Tribunal's reasoning. Those instances were described by the Minister as follows: (i) there was confusion as to when the appellant had first made contact with the Catholic Church in Australia and when he had begun attending the same; the Tribunal member 'may not have appreciated that the appellant meant to indicate that he was "attending" the Church at Homebush before he formally became a member of it, if that is what he intended to convey'; but the essential point thus raised by the Minister was that the Tribunal understood and accepted that the appellant had been a regular participant in Catholic worship in Australia for some time; nothing was contended to have turned on the exact time he began his involvement, and the Tribunal was said not to have reasoned that a delay in becoming involved indicated any lack of genuineness; (that submission did not to my mind come adequately to issue, and was not otherwise persuasive - at least inferentially, the Tribunal member treated as material to its process of reasoning the recency of the appellant's association with the Homebush Church, but the member was mistaken or confused, as the appellant established on the evidence, as to when that association commenced; moreover I think that in any event, the tenor of the Tribunal member's remarks in that regard indicated the relevance thereof to his reasoning) (ii) whilst it was correct, as the Tribunal recorded, that the appellant initially said he organized 'everything', and that the issue thus raised was then the subject of discussion, the Tribunal was entitled to regard the appellant's answers to its questions as 'vague', and Fr McGee was not able to add any detail about what the appellant did as a member of the Homebush Church's council or committee, and the only specific activity he could think of was the one which the Tribunal member mentioned; moreover the Tribunal was entitled to conclude that the appellant did not have a leadership role in the Church, and the Tribunal was entitled to conclude that the appellant had 'exaggerated' his role in the Church; in any event, that finding did not seem to have formed a basis for any further finding or conclusion; (that submission once more did not reflect with sufficient accuracy the testimonial evidence placed before the Tribunal; in particular, the appellant did not testify, to my perception, that he then exercised any such leadership role) (iii) in relation to the appellant's claimed intention to proselytise in China, the Tribunal's conclusion was that it was not satisfied that he held any such intention, being a conclusion based on the appellant's submission that he was not qualified to preach, and on the impression gained by the Tribunal that the appellant had not demonstrated any interest in being trained, and on discussion at the hearing that the appellant had not given the matter any thought prior to the hearing; those were conclusions which the Tribunal member, having had the benefit of observing the appellant give his evidence, was entitled to reach. (once again, I have encountered difficulty in understanding the extent of significance that which observation of the Minister sought to draw). 62 At most, according to the Minister's reasoning, the appellant's submissions on the appeal demonstrated that the Tribunal 'had made errors of fact in proceeding from the evidence to the findings, and none involved errors of law'. Even taken together, the Minister further contended, 'they do not begin to demonstrate a failure by the Tribunal to address the issues it had to determine let alone constitute in themselves, jurisdictional error.' From what I have already recorded, those submissions once more in my opinion did not characterise with any substantial accuracy the essential thrust of the appellant's case on appeal. 63 As to the issue raised on appeal as to the Tribunal's failure to consider the nature of his claim, the Minister contended that the same merely took issue with the process of factual inference by which an aspect of the claim was rejected. I was referred in that context to the appellant's claim that he intended to become an active proselytiser in China, and that he might '… unwillingly become implicated with house churches'. It was submitted by the Minister on that footing that '[t]he issue for the Tribunal was whether these things were likely to occur or not', and further that '[m]inds may differ as to whether, in deciding that factual issue, the Tribunal should have given emphasis to the appellant's recent history of religious involvement'. However the likelihood of future events crystallising falls inherently to be adjudged by the nature and purport, and of course the strength, of the evidence relevantly as to the status quo. 64 As to the conduct of the Tribunal generally, it was submitted by the appellant that 'the episodes' to which the appellant had pointed did not demonstrate a 'confrontational attitude', or a lack of proper respect for the appellant and his claims. From what as been already recorded and observed, I have considerable difficulty with an acceptance of that submission.

My concluding consideration of the respective submissions of the parties 65 As the detailed submissions of counsel for the appellant have I think demonstrated, the Tribunal's findings evince to a sufficiently significant and persuasive extent shortcomings and other errors in the Tribunal's approach to, and comprehension of, the purport and detail of the viva voce testimonial evidence of the appellant, and also of Fr McGee, which was tendered to the Tribunal, being shortcomings detailed in the submissions of counsel for the appellant which I have summarised and reproduced. Those shortcomings and other errors materially contributed in my opinion to the findings and conclusions of the Tribunal destructive of the credibility and viability of the appellant's case, and a failure otherwise to determine the fundamental issues raised by the appellant's case which the appellant had sought to present, without legal representation, to the Tribunal. Those shortcomings and other errors in findings and conclusions, were in particular that the appellant: '… exaggerated his interest and involvement in religious activities…'; '… fabricated the claim at the hearing'; '… greatly exaggerated his responsibilities and importance within the church'; and that accordingly the Tribunal was: '… not satisfied this claim is credible'; '… not satisfied that the applicant is either a religious activist or a person with a genuine interest in becoming a religious activist in the reasonably foreseeable future'. 66 The Tribunal furthermore in my opinion misstated and misconceived the bases and reasons put forward by the appellant, in his testimony (and that of his witness Fr McGee) to the Tribunal, concerning his claim as to an inevitable engagement in 'proselytising in China', if returned to China. I have been unable to distil any sufficiently viable or compelling basis for the inferences drawn and relied upon by the Tribunal in support of its contrary conclusion to the effect that the appellant would not engage in proselytisation of Chinese people to Christianity, if returned to China. Particularly is that I think the case, in the light of the extent of Fr McGee's corroboration of the appellant's account of his changes in spirituality and its manifestations as verified to the Tribunal. Having acknowledged that '… religious activists… who persist in proselytizing without obtaining government permission [have] been targeted by the [Chinese] authorities', yet not having explicitly or in any event adequately or substantially addressed Fr McGee's testimony as to the nature, duration and extent of the appellant's involvement in the Roman Catholic Church at Homebush, and as to the implications of Fr McGee's testimony corroborative of that involvement, I have been unable to distil any satisfactory basis or justification in support of the Tribunal's expressed lack of satisfaction of the appellant as '… a religious activist or a person with a genuine interest in becoming a religious activist in the reasonably foreseeable future', and who would thus '… attract the adverse interest of the [Chinese] authorities'. In that regard, I observe The Macquarie Dictionary (revised 3rd edition) definition of an 'activist' as a 'zealous worker for a cause', and assume that the Tribunal member intended a similar meaning, rather than the somewhat derogative connotation often ascribed to that description in more recent times in Australia. The Tribunal's finding appears to have been a material step to its ultimate conclusion, without having sufficient evidence to support that finding. It was a finding which would appear to have constituted a jurisdictional error in the sense exemplified for instance in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 (Full Federal Court - Mansfield, Selway and Bennett JJ). Accordingly I would formally grant nunc pro tunc leave to the appellant to raise the case and submissions which I have already sought to outline in these reasons, and which I think to be viable upon the bases I have explained. 67 Moreover I would conclude that those errors which have been correctly articulated by the appellant's counsel as inherently involved in the Tribunal's purported citation of, and reliance upon, the testimonial evidence placed before the Tribunal, has provided me with the unfortunate impression as to the Tribunal's misunderstanding of the detail as well as to the significance of the testimonial evidence of relevance given both by the appellant and Fr McGee. So much has been exemplified in these reasons by the Tribunal's inadequacy of review of the material facts and circumstances, and of the analysis apparent in its reasons for decision. Apart from the explicit errors by way of accurate reproduction of the evidence placed before the Tribunal, which the submissions of the appellant have exposed, omissions of reference to other aspects or facets of the evidence tendered to the Tribunal in the course of the Tribunal's reasoning, which I have at least largely identified, tend to demonstrate that the Tribunal did not pay at least adequate regard to material aspects of the testimony of the appellant and Fr McGee in the course of giving expression to its ultimate framework of reasons and conclusions. Particularly in my opinion are those observations exemplified by the submissions of the appellant's counsel the subject of the first, second, third, fourth, seventh and eighth so-called 'mistakes and misrepresentations of the evidence', though I would by no means discard those submissions of the appellant's counsel made also upon the fifth and sixth segments from any material bearing upon my final conclusions reached adversely to the Minister. 68 Were I presiding as a single judge of the Federal Court on a review of the reasons for decision of the Tribunal, instead as a single judge hearing an appeal on behalf of the Full Court from a Federal Magistrate, I would have readily concluded, upon the basis which I have already set out in these reasons, that the application for review should be upheld, given my access to the Tribunal transcript. Of course that transcript and its contents were not provided to the Federal Magistrate. Had that occurred, it is likely that the Federal Magistrate would have reached a different result. The detail and efficacy of the thrust and reasoning of the appellant's submissions demonstrate in my opinion an affirmative finding to that effect, favourably of course to the appellant. However it is apparent that the appellant's submissions, comprehensively advanced by his counsel in the context of the present appeal, were not advanced by the different counsel briefed to appear on behalf of the appellant in the Federal Magistrates Court, or at least largely and comprehensively so, who did not of course avail himself of the benefit of access to the transcript of the Tribunal proceedings. The critical issue therefore arises as to whether the principle, restated by the High Court (Mason CJ, Wilson, Brennan and Dawson JJ) in Water Board v Moustakas (1988) 180 CLR 491 at 497 that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below, should stand in the way of my allowing the admission of fresh evidence in the form of the transcript of the Tribunal hearing and the addition of new grounds. I have earlier referred to the discussion of the relevant principles for the admission of fresh grounds of appeal that appears in the reasons of the Court in VAAC of 2001. I have already observed that the concerns traditionally expressed on 'fresh evidence' do not exist in the present circumstantial context (at [15]). It is clear that I must consider whether the appellant has made good the exceptional criteria as to expediency and the interests of justice. In that regard, the appellant was represented by different but nevertheless competent and experienced legal counsel at the hearing of the review proceedings conducted in the Federal Magistrates Court. Nevertheless the thrust of the principal matters the appellant has propounded on the present appeal was not placed before the Federal Magistrate below, the previous counsel briefed for the appellant not having acquired the transcript of the Tribunal proceedings. I am entirely conscious of the proper role of appeals in the Court system as not involving a 'simply a discretionary procedural decision' (Iyer v Minister for Immigration and Multicultural Affairs (2002) 64 ALD 9 at 24 (per Gyles J)). 69 My consideration of the respective submissions of the parties, which I have sought to outline, leads me inevitably to the conclusion that the appellant's case for setting aside the decision of the Refugee Review Tribunal is soundly conceived. Bearing in mind the relevant principles referred to above, I am unable to accept that there exists strong dissenting considerations to the contrary. It is apparent that the Tribunal member did not afford the care and attention that was required in order to gain a sufficient understanding, and to essay a competent analysis, of the nature and detail of the appellant's case. The critical shortcomings by way of mistakes and misrepresentations, distilled in detail by the appellant's detailed submissions, aggregate relevantly to the extent necessary to require the conclusion that the Tribunal member did not comprehensively understand, and did not make substantively correct and informed findings, in relation to the respective testimonies of the appellant and Fr McGee, being testimonies which were mutually consistent and which were in my opinion by no means inherently implausible. The appellant's case was not based on personal experience of religious persecution as a practising Christian in China, but rather on a fear of persecution as a practising Christian, once returned to China, being a fear arising by reason of the appellant's spiritual convictions, experiences and associations gained in the context of living in Australia. It has not been suggested by the Minister that a claim having those parameters could not in any event satisfy the requirements of the Convention, and thus the statutory basis needed to be established by a putative refugee. 70 The nature and scope of the testimonial evidence, as outlined to the Tribunal by the appellant and Fr McGee, as I would comprehend the substance or effect thereof, was seemingly not the subject of material shortcomings in perceptions and understanding, such that it was not open to the Tribunal member to come to the conclusions that he did on the basis of the evidentiary material placed before him. Correctly and adequately understood and appraised, the testimonial evidence of the appellant and Fr McGee, at least when taken and understood together, qualified in my opinion at least potentially for refugee status. All that becomes at least tolerably clear to my mind, once the transcript of the Tribunal proceedings is carefully read and appraised. 71 The findings of the Tribunal, in particular as extracted in [18] above are I think so vitiated in the light of the evidence which I have identified as to impute error relevantly to the Tribunal. I am unable to distil a sufficiently viable basis available to the Tribunal for its radical conclusion that the appellant 'fabricated the claim at the hearing to enhance his application', or otherwise to support the adverse findings of the Tribunal I have listed in [65] above, in the light of the transcript of the evidence placed before the Tribunal. Significantly in that regard, no reference appears, in the context of the findings I have recorded at [18], to the testimony of Fr McGee, largely corroborative of the appellant's testimony, given to the Tribunal. Moreover as counsel for the appellant rightly pointed out, it was never part, or at least any material part, of the appellant's case placed before the Tribunal, that he had endeavoured to practise the Christian religion in China. The appellant's case was rather that if returned to China, he would conscientiously practice the Christian faith and thus seek to proselytise others, irrespective of the consequences, by reason of the radical changes to the depth of his spiritual life which he had already experienced in Australia. I am unable to perceive any reasonable basis in the evidence for the Tribunal's rejection of the credibility of that case. 72 In my opinion, the submissions propounded by the appellant are therefore substantially and essentially correct, and persuasive of the conclusion that the appeal should be upheld. I think that the appellant has established that the Tribunal's reasons point sufficiently to a conclusion that the same did not reflect, or sufficiently reflect, the thrust and substance of any sufficiently credible testimony given by the appellant, supported as the appellant's evidence was materially and essentially by Fr McGee. As I have earlier mentioned, nowhere in the summary reproduced in [18] did the Tribunal Member make explicit reference to Fr McGee's testimony to the Tribunal, and what I have extracted in [20] above accorded an inadequate epitome of the critical import of that testimony. Counsel for the appellant has I think rightly characterised as mistakes and misrepresentations of the Tribunal, concerning the evidence placed before the Tribunal, at least to the extent I have indicated above, being mistakes and misrepresentations constituting errors of law within the scope of the authorities to which I have referred and discussed. I would reject the submission of the Minister that the findings of the Tribunal, which I have distilled for analysis and rejection, were not of such significance as to require the conclusion that the Tribunal failed to determine the issues it was obliged to review. In that sense, the Tribunal did not engage in a review at all, as required by s 414(1) of the Migration Act 1958 (Cth), being the kind of conclusion reached analogously in the passage from the reasons for judgment cited earlier in [45] of Applicant WAEE. Inherent in that finding is of course my conclusion that the circumstances of the case, to the extent that I have outlined and recorded, were such as to sufficiently support the case of the appellant that the belated tender of the transcript of the Tribunal should be accepted, and that effect should be given to its contents accordingly. 73 As to the aspects of the other ground pursued by the appellant on the appeal, namely the Tribunal member's alleged rudeness and confrontational manner towards the appellant and Fr McGee said to have manifested in the course of the Tribunal hearing, I think that at least the member's observations complained of, as appear in [37] and [44], were as surprising as the same were misplaced. However, I would prefer not to attribute the radical significance to that material sought by the appellant, in the absence of affidavit or viva voce evidence tendered by the appellant and Fr McGee. I prefer to rest my conclusions upon the findings which I have already reached adversely to the Minister's case. The Court should be slow to attribute radical significance to the kind of unfortunate, and perhaps merely careless, or inadvertent and unthinking remark, which may fall from a judicial officer or decision-maker from time to time. 74 I should add however that Tribunal members are not of course required to remain silent or passive in the face of rudeness, exaggeration, time-wasting or prevarication by visa applicants or their representatives or accompanying witnesses. Nevertheless my reading of the transcript of the Tribunal proceedings does not indicate the existence of any one or more of such instances of behaviour of that kind on the part of either the appellant or Fr McGee. Indeed the very contrary was exemplified in the behaviour of both, as I read the transcript of the Tribunal hearing. The intrusion by the presiding Tribunal member of observations upon and his reactions to the testimonial evidence proffered by and on behalf of the appellant, to the extent complained of, were perhaps unfortunate. No more need be said. 75 It follows by way of conclusion that the applicant's application for review of the delegate's decision should be upheld and returned to the Tribunal, differently constituted, for reconsideration and rehearing according to law. That course should be implemented, notwithstanding the significantly more limited scope of the issues raised by different counsel earlier appearing for the appellant at the hearing of the application for review of the Tribunal's findings by the Federal Magistrate. The appellant should have his costs of the appeal, but given that the appellant has pursued grounds of appeal in this Court not raised below in the Federal Magistrates Court proceedings, I think that the appropriate course is that there should be no order as to the costs of the proceedings of the Federal Magistrates Court. I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Solicitor for the Respondent: Blake Dawson Waldron

Dates of Hearing: 2 September, 24 November 2004

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