NBKB v Minister for Immigration and Citizenship

BEFORE THE SECOND TRIBUNAL 5 The Tribunal accepted that the appellant had knowledge of Falun Gong exercises and an understanding of the basic principles for those exercises. It also accepted that she had 'some involvement with a group of Falun Gong practitioners in Hurstville' and that she subsequently joined a Falun Gong study group in Parramatta. However, the Tribunal did not accept that she had been involved with these groups prior to the first Tribunal hearing. The Tribunal found that the appellant's Falun Gong activities in Australia constituted conduct undertaken by her for the purpose of strengthening her claim for refugee status and hence disregarded such conduct as required by s 91R(3) of the Migration Act 1958 (Cth) (the Act). 6 The Tribunal found that the appellant did not flee China seeking protection and that she applied for protection in Australia 'as an afterthought'. It noted that she had come to Australia to do business and that when she first made her travel arrangements she had not intended to stay until she saw people practising Falun Gong in a park which she said 'touched' her. 7 The Tribunal found the appellant had provided no plausible or consistent evidence to support her claim about having been detained. It found that her claim regarding the ease with which she had 'resumed' work in her usual field of business despite her claim that her career was interrupted by a period in detention was implausible. 8 The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason in China.

THE FEDERAL MAGISTRATES COURT 9 Before the Federal Magistrate the appellant claimed that the Tribunal: 1. Failed to comply with s 424A(1) and s 441A of the Act, on the basis that it failed to provide the appellant with a copy of the transcript of the hearing before the previously constituted Tribunal and relied on questions put by the previously constituted Tribunal as part of the reasons for its decision; 2. Failed to comply with s 425(1) of the Act as it failed to raise with the appellant at the hearing any issues with her evidence given to the previously constituted Tribunal; 3. The Tribunal failed to properly consider the appellant's claim with respect to a well-founded fear of persecution in China should she return and therefore failed to comply with its obligations pursuant to s 414 and s 415 of the Act; 4. The Tribunal failed to take relevant material into account when it (a) treated the appellant's evident familiarity with the Falun Gong exercises and the principles behind them as being incapable of proving sincere adherence to the exercises or their principles; and (b) disregarded all evidence of the appellant's conduct in Australia for the purpose of assessing the whole of the appellant's claim. 10 As to the first ground, the learned Federal Magistrate concluded that the questioning by the previous Tribunal did not constitute information that the Tribunal considered would be the reason or part of a reason for affirming the decision under review within s 424A(1) of the Act. Her Honour found that the appellant's answers did amount to information, however the Court took the view that these answers were considered information given by the appellant for the purpose of the review and were excluded from the obligation in s 424A due to s 424A(3)(b) of the Act. 11 In relation to the second ground the Federal Magistrate held that just as a delegate's decision may put an appellant on notice of relevant issues, so too may the content of an earlier Tribunal hearing conducted as part of the same review. Her Honour held that even if there was an obligation on the Tribunal as reconstituted to alert the appellant to the relevance of what occurred at the first Tribunal hearing, 'this was met by the Tribunal when it stated at the outset of the second hearing that the evidence that the [appellant] gave to the original Tribunal member was evidence that the second Tribunal member may consider as evidence before him'. 12 Thirdly, the Federal Magistrate found that while the Tribunal did not expressly say that the appellant was not a genuine practitioner of Falun Gong, this finding is apparent from a fair reading of the Tribunal decision. As the Tribunal did not accept that the appellant was a genuine Falun Gong practitioner it was not necessary for it to consider whether she would face persecution in China by reason of her practice of Falun Gong should she return. 13 In relation to the fourth ground, the learned Federal Magistrate found that the Tribunal did not treat the appellant's evidence as incapable of proving sincere adherence to the principles of Falun Gong but rather was considering whether or not the appellant was a genuine Falun Gong practitioner at the time of the protection visa application as the issue of good faith clearly related to that application. Further her Honour found that the Tribunal addressed the appellant's conduct in Australia but disregarded it under s 91R(3) of the Act as she had not satisfied it that she engaged in such conduct otherwise than for the purpose of strengthening her claims to be a refugee. The Tribunal was not obliged to consider the evidence of the appellant's conduct in Australia in relation to what would occur if she returned to China.

GROUNDS OF APPEAL 14 The notice of appeal as amended raises the following grounds: 1. The Federal Magistrate erred in her consideration of Ground 2 of the Further Amended Application before her in that she failed to find that the Tribunal fell into jurisdictional error by reason of a failure to comply with section 425(1) of the Migration Act 1958. 2. The Tribunal fell into jurisdictional error when it took into account and relied upon the appellant's conduct in Australia in determining whether or not she was a refugee. 15 At the hearing of the appeal before me the central point advanced for the appellant was that it was unfair for the Tribunal to proceed to make its decision without directing the appellant's attention to the critical issues. Counsel for the appellant identified the critical factors taken into account by the Tribunal as being: 1. the appellant's evident familiarity with the five Falun Gong exercises and the principles behind them, 2. the appellant's oral evidence to the previously constituted Tribunal about her involvement in the alcohol trade over several years right up to the time she left the PRC for Australia, 3. the appellant's claim about her career being interrupted by a period in detention for breaching the ban against Falun Gong, 4. a finding as to there being no plausible, consistent evidence to support her claim about having been detained, 5. the appellant's claim to the previously constituted Tribunal about 'resuming' work in her usual field of business, 6. a finding that the appellant's explanation for the ease with which she 'resumed' that work was an implausible one, relying on a selective and inconsistent argument regarding the effectiveness of contacts in the PRC, 7. the appellant's claims about the reasons for her divorce. The Tribunal found that it could not give the claims any weight and that the appellant's divorce had nothing to do with the Convention-related factors cited by her. 8. the appellant's evidence to the previously constituted Tribunal in which the Tribunal found that 'she indicated that her family was not living under any relevant pressure in the PRC'. 16 The appellant submitted that none of the matters referred to above were raised with her at the second Tribunal hearing. In particular, the appellant complains that the Tribunal relied on the first Tribunal's questioning of her and considered this sufficient compliance with s 425(1) without alerting her to any of the substance of the questioning. 17 The appellant contended that the Tribunal failed to comply with s 425(1) which required it to conduct a hearing on the issues arising in relation to the decision under review. Further, the appellant says that she was not put on notice as to the critical issues for the purposes of the review and that it was not apparent from the delegate's decision what were likely to be issues on the review. 18 The appellant relied on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 to support the proposition that the Tribunal has an obligation to identify to the appellant the issues which are critical to the decision. The appellant further referred to Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576at [591] - [592] where the Court held: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. 19 In relation to the second ground of the appeal, the appellant submitted that the Tribunal erred in taking into account the appellant's conduct in Australia in finding that the appellant did not have a well-founded fear of persecution if she were to return to China.

Ground 1 20 Before the learned Federal Magistrate the appellant contended that the Tribunal gave no indication that other issues previously raised by the originally constituted Tribunal remained issues arising in relation to the decision under review for the purposes of s 425(1) of the Act. 21 Under s 425 of the Act, the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal will have breached s 425 where it fails to notify the applicant of the determinative issues arising in relation to the decision under review: SZBEL 228 CLR 152. If the Tribunal takes no steps to identify the issues which it considers dispositive or determinative, an applicant is entitled to assume that the issues that the delegate considered dispositive or determinative are the issues arising in relation to the decision under review: SZBEL. 22 The learned Federal Magistrate held that SZBEL is not authority for the proposition that a reconstituted Tribunal must in all cases take the appellant through evidence given to the delegate or to the Tribunal as originally constituted and tell the appellant what it accepts and what remains of concern. The Tribunal does not have to provide a running commentary of what it thinks about the evidence it is given. There is no doubt as to the correctness of the latter proposition. 23 The learned Federal Magistrate found [at 64] that the fact that the issues had been raised with the appellant at the first hearing gave the appellant the opportunity to address those issues both before the first and second Tribunal via oral evidence or written submissions. The Federal Magistrate found that in circumstances where issues had been raised with the appellant at the first hearing, it could not be said that the appellant was unaware of their potential relevance to the Tribunal decision. Her Honour stated that just as a delegate's decision may put an appellant on notice of relevant issues, so too may the content of an earlier Tribunal hearing conducted as part of the same review. 24 The Federal Magistrate found that as long as the Tribunal has taken steps to identify issues other than those considered dispositive by the delegate and has informed the appellant of the issues, the appellant will be on notice of the issues arising in relation to the decision under review. 25 Finally, her Honour held that even if there was an obligation on the Tribunal as reconstituted to alert the appellant to the relevance of what occurred at the first Tribunal hearing, this was met by the Tribunal when it stated at the outset of the second hearing that the evidence that the appellant gave to the original Tribunal member was evidence that the second Tribunal member may consider as evidence before him. Her Honour concluded that advising of this information sufficiently alerted the appellant to the fact that the discussion of issues at the first hearing was material before it. 26 At the hearing of the appeal before me, the appellant submitted that it was not sufficient for the Tribunal to simply rely on a discussion which had taken place at the first Tribunal two years before, with an applicant being required to deduce what adverse conclusions a later Tribunal would arrive at based on the records available of that discussion. It was submitted that the Federal Magistrate erred in finding that 'the fact that evidence at the previous hearing was evidence before the Tribunal also sufficiently alerted her to the fact that the discussion of issues at that hearing was material before it'. 27 The first respondent submitted that where the issues had been squarely raised with the appellant at the first hearing, the appellant may be taken to have been put on notice of the issues arising in relation to the review. The first respondent contended that the review continues until a valid decision is made: SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291. 28 Under s 425(1) of the Act, the Tribunal has an obligation to invite the appellant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425(2) of the Act provides exceptions to this obligation in circumstances where the Tribunal considers that it should decide the review in the applicant's favour, where the applicant consents to the Tribunal deciding the review without the applicant appearing before it, or where s 424C(1) applies to the applicant. None of these exceptions apply in the present case. 29 In SZHKA [2008] FCAFC 138 at [103], Besanko J expressed the test for compliance with s 425(1) in these terms: In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. 30 At [7] Gray J observed: First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal's conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal's specific reservations about the applicant's case. (emphasis added) 31 It is clear from the transcript of the second Tribunal hearing, that the Tribunal Member discussed with the appellant the five Falun Gong exercises and tested her understanding of the exercises. However, the Tribunal did not address the appellant's evidence in relation to her involvement in the alcohol trade in China, her claim about having been detained and her career being interrupted by the detention, her claim about resuming work after the detention, her claim in relation to her divorce and her evidence that her family was not living under any relevant pressure in China. The Tribunal relied on the appellant's evidence on these issues in concluding that her claims were not plausible, consistent or credible. However, the Tribunal did not question the appellant on any of these issues at the second Tribunal hearing nor did it indicate that these aspects of the appellant's account were live issues in relation to the decision under review. As a result, in my view, the appellant did not have a realistic opportunity to provide further evidence or make submissions on these issues. 32 In SZHKA [2008] FCAFC 138 Gyles J considered the application of the statutory obligation arising under s 425(1) of the Act in circumstances where in each case, the decision of the first Tribunal had been set aside and the matter had been remitted to the Tribunal. His Honour stated at [37]: … it is difficult to see an escape from the proposition that once an administrative decision is set aside for jurisdictional error, the whole of the relevant decision making process must take place again (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597). There is no analogy between that situation and a rehearing ordered on an appeal in judicial proceedings or pursuant to statutory provisions such as s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) or the former s 481 of the Act. Mandatory statutory obligations must be carried out again. The suggested dichotomy between an administrative decision and what precedes it is unconvincing in this context. Such a conclusion would not mean that what has taken place in the previous review cannot be taken into account in the second review if considered relevant. The proceedings are administrative, not judicial, and the Tribunal can have regard to all relevant material, including a transcript of what took place at the previous hearing, subject to compliance with the statutory regime. (emphasis added) 33 Further Gray J stated at [8]: Simply to regard the rights given by s 425(1) as an item on a procedural check list, that the member can regard as having already been ticked off, would be for the Tribunal to abdicate its responsibility to conduct a review. Similarly, for the member to regard his or her task as being no more than to repeat the views and conclusions of the member responsible for the earlier Tribunal decision, without the jurisdictional error identified in the proceeding in which that decision was quashed, would be a failure to perform the function of reviewing the primary decision to refuse a protection visa. Once the member embarks on the process of considering the material before the Tribunal, including both the material provided originally by the applicant and the material emerging from the earlier hearing, the Tribunal member's mind will begin to focus on reasons why he or she is not persuaded by the case that the applicant put. If this were not so, and the member was persuaded as to the applicant's case, then a visa would be granted and no further hearing would be required. The process of focussing on reasons for being unpersuaded will give rise to issues of the kind that the High Court identified in SZBEL as being issues arising in relation to the decision under review. It is these issues on which the applicant is entitled by s 425(1) to be invited to provide information by giving evidence and to persuade by presenting arguments. (emphasis added) 34 In the present case, the first respondent conceded that the decision of the first Tribunal was affected by jurisdictional error. The Federal Magistrate granted the application by consent, quashed the decision of the first Tribunal and remitted the matter to the Tribunal to be re-determined according to law. 35 In my opinion, the obligation under s 425(1) of the Act is not discharged by the first Tribunal having discussed with the appellant some of the issues that ultimately became critical to the decision under review. In my view, the Tribunal failed to sufficiently alert the appellant to the critical issues arising under the review. This ground of appeal should be allowed. 36 The conclusion I have reached is intended to be consistent with the extracts I have cited from the Full Court decision of SZHKA [2008] FCAFC 138. 37 To the extent that it may be argued that those views may be inconsistent with SZEPZ 159 FCR 291, I would respectfully prefer the analysis of Gyles J (at [31]) in SZHKA to the effect that such an argument would misconstrue the reasoning in SZEPZ (for the reasons examined by his Honour at [32]-[37).

Ground 2 38 Section 91R(3) of the Act provides that in determining whether a person has a well-founded fear of persecution for a Convention reason the decision-maker is required to disregard any conduct engaged in by the person in Australia unless he or she is satisfied that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Convention. 39 Section 91R(3) can only sensibly be applied after primary findings of fact have been made: SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105. Once primary facts have been found that include conduct engaged in by the applicant in Australia, s 91R(3) is engaged. 40 The appellant relied on the decision of SZJGV [2008] FCAFC 105 and the reasoning expressed at [24] where the Full Federal Court stated: 24 The central issue in these cases is, then, whether, in these circumstances, the appellants' conduct could be and was taken into account by the Tribunal when it determined that they were not refugees. In our view such conduct could not lawfully be brought into account… Decision makers are, subject to the proviso in paragraph (b), required to disregard "any" conduct in Australia by an applicant. The conduct is to be disregarded in determining "whether" an applicant has a well-founded fear of persecution for a Convention reason. The conduct may suggest that such a fear is or is not well-founded. In either case it must be disregarded. If the Tribunal brings the conduct into account it will contravene s 91R(3). (emphasis added) 41 The appellant submitted that the Tribunal's consideration of and findings relating to the conduct of the appellant in Australia played a substantial role in the Tribunal's finding that the appellant did not have a well-founded fear of persecution if she returned to China. It was further submitted that the Tribunal looked at the appellant's conduct in Australia in making adverse credibility findings. The appellant referred to the Tribunal's decision at 16-17 where the Tribunal Member stated: The Tribunal gives weight to the evidence to the effect that the Applicant came to the Australia [sic] not only for the stated purpose of ding [sic] business here but also for the demonstrated purpose of doing business here. The Tribunal gives weight to the fact that the Applicant arrived in Australia to do business and went on to Adelaide and conducted the meetings she planned to undertake. The Tribunal gives weight to the Applicant's claim that she only decided to claim protection in Australia after she witnessed Falun Gong practitioners doing exercises in Sydney, after she came to Australia for another purpose, which other purpose she then went on to pursue. The Tribunal gives weight to the fact that, according to oral evidence given to the previously-constituted Tribunal, the Applicant did not apply for protection until after she went to Adelaide and pursued her business agenda there to some extent or degree. Taking all these factors into account, the Tribunal concludes that the Applicant did not flee to the PRC seeking protection and that she applied for protection in Australia as an afterthought. 42 For the first respondent it was contended that the Tribunal did not take into account the appellant's conduct in Australia. It says that what the Tribunal was addressing in the above passage was when the appellant decided to make her application for a protection visa. It was not addressing the appellant's conduct in Australia. 43 However in my view the activities in Australia were given greater significance than is suggested. Those activities are the factors which demonstrate or prove the true reason for bringing the claim - that is, as an afterthought on arrival in Australia and on doing business in Australia. In SZJGV [2008] FCAFC 105 the Court noted that the subsection is cast in imperative terms - it obliges a decision maker to disregard any conduct engaged in by the applicant in Australia subject to the proviso in paragraph (b). Further, the stipulation that a decision maker must 'disregard' an applicant's conduct in Australia requires that such conduct not be brought into consideration when determining whether the applicant has a well-founded fear of being persecuted for a Convention reason. The Court found at [27]: The Tribunal, however, when explaining its reasons for rejecting the appellant's claim to have been a Falun Gong practitioner in China relied, inter alia, on the appellant's "recent attempts to construct a profile of a Falun Gong practitioner for himself" as undermining the credibility of his claim to have practised Falun Gong in China. In the immediately following paragraph, the Tribunal makes the contradictory statement that it disregarded the appellant's Falun Gong related activities in Australia. Both statements cannot be correct. Having regard to the Tribunal's reasons as a whole, we think it more likely than not that the Tribunal did have regard to the appellant's conduct in Australia, if only for the limited purpose of assessing the credibility of his claim to have been a Falun Gong practitioner in China and to have suffered persecution for having done so. In doing so, the Tribunal contravened s 91R(3). It thereby made a jurisdictional error. This appeal should be allowed. (emphasis added) 44 In my view the Tribunal relied on the appellant's conduct in Australia in determining that she did not have a well-founded fear of persecution for a Convention reason. The Tribunal acknowledged that the appellant had knowledge of the exercises and principles of Falun Gong. The Tribunal also noted that the appellant practised Falun Gong in Australia. The Tribunal then gave weight to the appellant's evidence that she came to Australia to do business, the fact that she pursued her business agenda whilst in Australia and that she only decided to claim protection after seeing other practitioners doing Falun Gong exercises. The Tribunal concluded, taking these factors into account that the appellant did not flee China seeking protection and that she applied for protection in Australia as an afterthought. 45 Although the Tribunal stated that it disregarded the appellant's conduct in Australia under s 91R(3) of the Act, it is apparent from the Tribunal's decision record that it did have regard to the appellant's conduct in Australia for the purpose of assessing the merits of her claim for protection in Australia. The 'evidence of afterthought' is further relied upon in assessing the appellant's credibility. 46 In my view, the Tribunal breached s 91R(3) of the Act. It follows that the decision of the Federal Magistrate to dismiss the application should be set aside.

CONCLUSION 47 The appeal will be allowed. I will make the following orders:

1. The decision of Federal Magistrate Barnes delivered on 30 July 2008 be set aside.
2. The first respondent or any of the officers of his Department are prevented from acting on the decision of the second respondent of 18 December 2006 to affirm the decision of a delegate of the first respondent not to grant the appellant a protection visa. (the Tribunal decision).
3. The Tribunal decision be quashed.
4. The application of the appellant for review of the decision of a delegate of the first respondent not to grant the appellant a protection visa be remitted to the Refugee Review Tribunal for re-determination according to law.
5. The first respondent do pay the appellant's costs of the appeal and of the proceedings in the Federal Magistrates Court. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 11 February 2009 Counsel for the Appellant: IGA Archibald