SZFXG v Minister for Immigration and Citizenship

APPEAL TO THE FEDERAL MAGISTRATES COURT 5 On 16 March 2005 the appellant filed an Application for Judicial review of the Tribunal's decision in the Federal Magistrates Court. In an amended application filed on 10 June 2005, the appellant asserted that the Tribunal fell into jurisdictional error and provided the following particulars: '(a) The Tribunal officer had bias against me and asked me only one question and determined that I was not a Christian. (b) The Tribunal failed to consider my claims. I could not receive proper interpreting service. The Tribunal officer mentioned at the decision letter that "and while he gave the name of the Pastor the interpreter could not translate this." (c) When I could show the Tribunal the address. I could not pronounce and said it out from my memory, the Tribunal therefore concluded: "However, he did not know the address." And refused my application based on this. The true reason was that my English was not good and I could not pronounce it. (d) The Tribunal failed to observe Migration Act 1958 properly to making the decision. (e) The Tribunal's satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. (f) The Tribunal failed to have any finding as to weather I would be persecuted if I attempted to participate in unregistered religious activities in China. (g) The Tribunal failed to assess the chance of my persecution on my return to China based on my involvement with unregistered religious activities in China.'

DECISION OF THE FEDERAL MAGISTRATE 6 Raphael FM found that the assertion of bias was a serious matter and he was unable to consider such a claim in the absence of a transcript. 7 In support of his second claim, namely that the Tribunal failed to provide the appellant with a proper interpreting service, the appellant referred to two instances in which the interpreter had difficulty in assisting the appellant. Raphael FM found that the Tribunal did not use the interpreter's failure to provide information against the appellant. 8 Raphael FM stated that he did not fully understand what was intended by the appellant's assertion that the Tribunal failed to comply with the Act. However, assisted by the submissions of the Minister, His Honour understood this claim as constituting a breach of s 424A of the Act. 9 The Tribunal's decision refers to the appellant's claims that he was a key member of an underground church and had successfully set up three bible study groups; that he was detained for almost two weeks in April 2004. The information relating to these matters was not contained in the Application for Review nor in the declaration provided by the appellant to the Tribunal. However Raphael FM considered s 424A of the Act and held that these claims had nevertheless been republished by the appellant for the purposes of his application for review to the Tribunal. Raphael FM stated at [13]: 'All three of these claims are made originally in the protection visa application, but in his application to the Tribunal, the applicant squarely put all these matters in issue by saying that he did not think the delegate had considered all his claims fairly three times at [CB55], [CB56] and [CB59]. Ms Wong rightly points out that this type of submission by an applicant to the Tribunal which refers directly to the matters considered by the delegate are matters which fall within the exception stated in s.424A(3)(b) of the Act: SZDNG [sic] v Minister for Immigration [2005] FCA 1034 at [6]; SZHIB v Minister for Immigration [2006] FCA 611 at [23].'

10 As to ground (e), namely that the lack of satisfaction of the Tribunal was not based upon a rational or logical foundation, no particulars were provided. Raphael FM found that the conclusions of the Tribunal were logical and based upon answers to questions asked by the Tribunal of the appellant. 11 Raphael FM considered the claim of the appellant relating to the possibility of persecution and found the Tribunal considered the situation in the PRC and the possibility that the appellant might be persecuted on his return.

NOTICE OF APPEAL 12 The Notice of Appeal raises the following grounds: '1. There was an error of law in the Tribunal's decision constituting jurisdictional error 2. There was procedural error in the Tribunal decision constituting are absence of the natural justice 3. The judgment of Judge failed to consideration the Tribunal constractively [sic] failed to exercise its jurisdiction and to afford the applicant natural justice in circumstances where the Tribunal applied the incorrect test of persecution for convention purpose. 4. The Tribunal's power may greatly be protected by the "privative clause". However, an administrative Tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question ignores relevant material relies on irrelevant material or, in some circumstance, make an erroneous findings or reaches a mistake and conclusion in the way that affects the exercise. 5. Further more the Tribunal has failed to comply with its obligations under the section 424A of the Act. The Tribunal must give to me particular of any information that the Tribunal considers would be reason or a part of the reason for affirming the decision that is under review and ensure that I understand why it is relevant to the review and invited me to comment on it 6. Regarding to other issues raised from the Tribunal's decision, It is obviously ill-founded without any substantial evidences excepting Its erroneous findings based. It's poor knowledge and understanding about underground church activities and organization in china [sic].'

Hearing before this court 13 The appellant filed written submissions claiming that the Tribunal committed a jurisdictional error, exceeded its jurisdiction, denied natural justice in considering persecution, breached s 424A of the Act, failed to draw correct inferences from the evidence of the appellant and compromised his credibility. 14 At the hearing of this appeal on 14 February 2007 the appellant appeared assisted by an interpreter. When invited to provide oral submissions he explained that he had not prepared the Notice of Appeal and was not able to elaborate on his claims. He requested more time to obtain legal advice, and alleged that Raphael FM did not grant him an adjournment. He also complained that the Tribunal did not give him an opportunity to submit documents, did not explain the definition of refugee, and did not explain how the Minister had reached the decision to refuse the Protection visa. The appellant said that he wished to submit a statement explaining the brutal treatment he had received and other evidence. 15 The Court became concerned that there may have been a breach of s 424A of the Act in respect of the three issues identified by Raphael FM as set out at [9] above. For this reason the hearing was adjourned to enable the transcript to be provided to the Court. The appeal was re-listed part heard on 8 March 2007 at which time the affidavit of Michele Louise Solomons affirmed on 21 February 2007 attaching the transcript of the Tribunal hearing was read. The Minister, as a model litigant, provided a further outline of submissions on issues arising out of the transcript. The appellant, assisted by an interpreter did not proffer any further submissions at the adjourned hearing.

Findings 16 The application to the Federal Magistrates Court was filed on 16 March 2005. The hearing took place before Raphael FM on 21 August 2006 and the decision was given on that day. The Court accepts the Minister's submissions that the appellant had ample opportunity to obtain legal representation. There is no evidence that the appellant made any attempt to seek legal advice and no reason was offered for his failure to do so. During the period of the adjournment the appellant apparently made no attempt to obtain such advice. 17 Grounds of appeal 1, 2, 3 and 4 contained no particulars. From the allegations made in the Notice of Appeal it is not possible to discern any particular matter giving rise to jurisdictional error. It is apparent from Raphael FM's judgment that his Honour carefully considered the appellant's claims but could find no error by the Tribunal. The Tribunal had not accepted the appellant's claims that he was a key member of an underground church nor that he had been persecuted. Before this Court the appellant was asked whether he understood the significance of Easter and responded that it signified the birth of Christ. He similarly was unaware of the significance of Christmas. 18 In these circumstances the Court is unable to find any basis for the claims arising under grounds 1, 2, 3 or 4 of the Notice of Appeal. 19 By claim No. 5 in the Notice of Appeal the appellant alleged that there had been a breach of s 424A of the Act by the Tribunal. The Minister drew the Court's attention to three possible categories of information to which the appellant might be referring being the three issues referred to in [9] above. 20 The Minister submits that the information provided by the appellant in his Protection visa application including that relating to his claims concerning the establishment of bible study groups, the black list and his alleged detention was republished to the Tribunal. Such information was provided by him to the Tribunal in his statutory declaration dated 20 December 2004 for the purposes of review. Accordingly the Minister submits that the information falls within the exception in s 424A(3)(b) of the Act and relies upon the decision in SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 at [6]; SZHIB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 611 at [23]. 21 To determine whether republication has in fact occurred, it is necessary to consider, in chronological order, several authorities relating to the development of such principle. In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at [17] per Ryan and Conti JJ and [35] per Merkel J a Full Court held that the information to which s 424A(3)(b) refers is information given by an applicant to the Tribunal for the purpose of the application for review, and not information given on the original application for a Protection visa. 22 In M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 Gray J found that in an Application for Review, the express reliance by an applicant upon information contained in his Protection visa application was sufficient to give rise to the exception given by s 424A(3)(b) of the Act. 23 In NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 Jacobson J referred to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 but found that the exception provided by s 424A(3)(b) to the requirements of s 424A(1) is enlivened only when an applicant provides to the Tribunal information in support of his application for review. His Honour held that mere responses to questions asked by the Tribunal concerning the Protection visa application was insufficient to give rise to the exception in s 424A(3)(b) of the Act. 24 In SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 the applicant referred to the claims he had originally made in his Protection visa application in the statutory declaration filed with his Application for Review to the Tribunal. After considering M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 and NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 Gyles J held that in his statutory declaration the appellant had republished to the Tribunal his original claims and had relied upon them for the purpose of the review by the Tribunal. Accordingly the appellant had given the information to the Tribunal and the exception to the requirements of s 424A(1) of the Act provided by s 424A(3)(b) of the Act applied. 25 In SZHIB v Minister for Immigration and Multicultural Affairs [2006] 611 FCA the appellant on his Application for Review provided the Tribunal with a letter which criticising the Minister's consideration of his Protection visa application. The letter included references to the claims the appellant had made in support of his Protection visa application. Young J found that the appellant had republished material in the Protection visa application by the letter accompanying the application to the Tribunal. His Honour said at [9]: 'Thus in his letter the appellant repeatedly referred to his 'claims' which, in context must be read as a reference to the detailed claims set out in his statutory declaration of 22 December 2004 which supported his application for a protection visa.'

His Honour continued at [23]: 'The appellant's letter incorporates, in my view, the substantive claims made in the appellant's statutory declaration which supported his application for a Protection visa'.

26 In NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 the Full Court considered whether s 424A(3)(b) of the Act applied in respect of information relating to the date of the appellant's arrival in Australia. The appellant claimed that the Tribunal relied upon such information without providing her written particulars as required by s 424A(1) of the Act. During the Tribunal hearing the Tribunal member asked the appellant about the date of her arrival in Australia and the appellant responded providing the date. The Full Court referred to the decision in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 and after referring to the 'narrow approach' adopted in that decision, said at [50]: 'But in the present case where the date information comprises no more than just basic facts known to the appellant which are foundational to the application for review, I consider that the appellant's reliance on NAZY is stretched too far.'

27 The Full Court reviewed other authorities including those referred to above, and concluded at [59]: 'These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific "information" for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal.'

28 In the present circumstances the facts relied upon by the Tribunal relating to the appellant's involvement as a Church leader, his establishment of bible study classes, and his alleged detention in April 2004 for a period of two weeks, were more than just 'foundational to the application for review' (see NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [59]). Such facts were integral to his claim of having a well founded fear of persecution. 29 In the appellant's statutory declaration filed with the Tribunal in support of his Application for Review, the appellant stated that he did not accept the refusal decision: '…mainly based on the reasons as follows-: …I do not think that the Delegate has considered all of my claims fairly and carefully…'

30 In his statutory declaration the appellant repeated such assertions, stating: 'I do not accept the refusal decision on my application for a protection visa, because the delegate failed to consider my claims, carefully, thoroughly and fairly; otherwise the delegate must find that my fear of being persecuted on my return is definitely well- founded.'

31 The appellant twice repeated his claim in his statutory declaration alleging failure of the Minister to consider his claims, and set out in more detail the circumstances relating to the appellant's involvement in arranging training for approximately 10 members in one of the bible study groups by a priest from Hong Kong and of his learning of the fact that his name was included on the 'black list'. The appellant concluded such statutory declaration stating that: 'In summary, I NEVER EVER believe that my application has been assessed by the delegate carefully, fairly and thoroughly. I have to seek a review because I do indeed have a well-founded fear of being persecuted on my return owing to my political opinions.'

32 By his assertion that 'all' his claims had not been properly considered by the Minister, the appellant invited the Tribunal to consider those claims which were contained in the statutory declaration accompanying his application for a Protection Visa. The transcript of the Tribunal hearing records that the Tribunal specifically put to the appellant the claim relating to the 'black list', and that he was a 'key person to plan and organise anti-government religious activities'. The appellant acknowledged such claims. The Tribunal concluded the hearing by informing the appellant that it would review 'both the tape of the hearing and the claims that you have made'. Those claims included the claim of alleged detention contained in the declaration accompanying the appellant's Protection visa application. 33 The Tribunal could not have properly reviewed the Minister's decision pursuant to the invitation to review the appellant's claims without having regard to the claims in the Protection visa application. In this way, the appellant re-published those claims. The same considerations referred to by Gyles J in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 and by Young J in SZHIB v Minister for Immigration and multicultural and Indigenous Affairs [2006] FCA 611 apply. The information contained in the Protection visa application was given by the appellant to the Tribunal as provided in s 424A(3)(b) of the Act by virtue of the re-publication. It follows that there is no breach of s 424A(1) of the Act. 34 As to the remaining ground of appeal, the appellant submits that the Tribunal had no evidence to support its findings in relation to the underground church activities. The appellant has not provided any particulars to support his claim. Such claim overlooks the fact that the Tribunal had independent country information available to it which was put to the appellant. The Tribunal was required to determine for itself the circumstances concerning the likelihood of persecution: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]. The Court is satisfied that this ground cannot succeed. 35 The Minister has drawn the Court's attention to the High Court's decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 in which it was held that the Tribunal will breach s 425 of the Act if it fails to give an applicant sufficient opportunity to give evidence or make submissions regarding 'the issues arising in relation to the decision under review'. The Minister refers to two issues which might constitute a breach of s 425 of the Act by the Tribunal. Such issues include questions whether the appellant was a Christian and whether the appellant had attended Church in Australia, otherwise than for the purpose of strengthening the appellant's claims to be a refugee pursuant to s 91R(3) of the Act. 36 The Minister has referred the Court to portions of the transcript of the hearing of the Application for Review in support of the submission that there is in fact no jurisdiction error arising due to any breach of s 425. The transcript records that the appellant was questioned extensively by the Tribunal in relation to his claimed Christian beliefs and the extent of the participation by the appellant in Christian activities in Australia. Having considered the transcript the Court is satisfied that the Tribunal put the appellant on notice that these issues were of concern. Accordingly the Tribunal complied with its obligations under s 425 of the Act. 37 The Court will accordingly dismiss the appeal. 38 The Minister has sought an order for costs in the sum of $ 5000. Since this is within a reasonable range for costs taking into consideration the need for the adjournment, the Court will make the order sought. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy .