SZGSI v Minister for Immigration and Citizenship

Federal Court of Australia (Full Court)|2007-07-27|Before: Marshall J, Marshall JJ, Moore J

BACKGROUND FACTS RELEVANT ON APPEAL 9 The appellants, who are wife and husband respectively, appeal from a judgment of the Federal Magistrates Court. The Court below dismissed an application by the appellants for judicial review of a decision of the Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse to grant the appellants protection visas. 10 The appellants are citizens of the Peoples Republic of China, from Fujian province. The first appellant applied for a protection visa on the basis that she feared persecution if returned to China in the reasonably foreseeable future, on account of her religion. The second appellant is her husband. He applied for a protection visa based on his membership of the first appellant's family unit. 11 The first appellant claimed to be a member of an underground Christian group. She claimed to have helped to establish a petrol station in 2001. The petrol station acted as a secret liaison point for the receipt, storage and distribution of religious materials and as a point of contact with other religious groups. 12 The first appellant also claimed that a senior police officer in the Public Security Bureau ('PSB'), Mr W, regularly attended the petrol station and gave her information. She claims his friendship helped to protect her. However, the first appellant said that in September 2004, police arrested a person who had received religious materials from an employee of the petrol station who was supervised by the first appellant. The employee managed to avoid immediate detection. Mr W asked for the first appellant's assistance in his investigation into locating the employee. The first appellant became frightened and the appellants decided to leave China. The first appellant said that after leaving China she learnt that the employee the subject of the investigation had been located and arrested, that five other employees of the petrol station had also been arrested and that Mr W had been suspended from the PSB because of their friendship.

THE REVIEW 13 After a delegate of the Minister rejected the appellants' applications for protection visas, they applied to the Tribunal for review of that decision. On the application for review form, the appellants are listed as "Applicant 1…(female)" and "Applicant 2…(male)". The form contains a statement that "Each person is an applicant in his or her own right". 14 An application to the Tribunal to review a decision of the delegate is permitted by s 412 of the Act. Under s 412(2), an application for review may only be made by the non-citizen who is the subject of the primary decision. Here, each appellant was the subject of the primary decision. 15 The Tribunal invited the appellants to a hearing before it on 8 February 2005. The appellants attended the hearing. Each appellant gave evidence before the Tribunal, with the assistance of a Mandarin interpreter. 16 The Tribunal first questioned the second appellant, asking him what he wanted to talk about "in connection with your wife's refugee claims". The second appellant referred to a person's arrest in October 2004. The Tribunal member said he would come back to that later and proceeded to question the first appellant. He asked the first appellant what she feared would happen to her if she returned to China. She said that she feared arrest because her underground church activities were illegal. 17 The Tribunal again questioned the second appellant. The second appellant said that he had experienced problems in China as a Christian but that he does not claim to be a refugee. He said that he is relying on his wife's claim. The Tribunal then questioned the first appellant about her family in China and the timing and circumstances of her leaving China. 18 The Tribunal next questioned the second appellant about his visit to Australia in mid-2004. The second appellant said that he "just came over here to have a look at whether Christians here are free or not". The Tribunal asked the second appellant why he went back to China shortly after arriving in Australia in mid-2004 if it is not safe for Christians in China. The second appellant said, in effect, that he wanted to be with his wife and family. The second appellant also said that he was with a tour group during his visit to Australia in 2004 and that he visited a church in Adelaide "to understand something about it". 19 During the course of this discussion, specifically in answer to a question from the Tribunal about how the second appellant funded his visit to Australia in mid-2004 given he worked in China as a petrol station attendant, the second appellant said that he "used to be the general manager of the [petrol] station". 20 After questioning the second appellant about his visit to Australia in 2004, the Tribunal said that it wanted to make an observation that: …when someone comes out here four months earlier and then returns to their home country it does look a little bit like there is no danger in your country. 21 The Tribunal member that said that he wished to question the first appellant about her religion and her past experiences. He asked the second appellant to wait outside the hearing room while he discussed these matters with the first appellant. 22 In the absence of the second appellant, the Tribunal member told the first appellant that he had "letters" from the "Christian Assembly of God". This appears to be a reference to a single letter on Christian Assembly of Sydney letterhead dated 31 January 2005 from Mr Joshua Ying Sang Ng, Chairman, headed "TO WHO IT MAY CONCERN". The letter confirmed that the first appellant "has been meeting with the church at Roseville November 2004". It also said "we have no hesitation in commending [the first appellant]". It contained no other relevant information. 23 The first appellant told the Tribunal that she first went to the Christian Assembly of Sydney Church in Roseville in "early November". She said she travelled to Roseville by train each Sunday to attend the 10.30 am service. When questioned by the Tribunal about whether the Church was Protestant or Catholic, the first appellant answered, "shouter". 24 Shortly thereafter, the following exchange occurred between the Tribunal and the first appellant: TRIBUNAL MEMBER: When you went to the church in November did you tell anyone about your experiences in Fujian? INTERPRETER: Yes, at the very beginning I told them about experience. 25 The Tribunal asked the first appellant, "Who did you tell about your experience?". The first appellant replied, "Brothers from the church". 26 The Tribunal then asked the first appellant about her religious activities in China, about her knowledge of Christianity and about the practice of Christianity generally in Fujian province. 27 Some time later, the Tribunal put to the first appellant that "your husband has also been practising and he has not had problems". The first appellant said that her husband was not involved in the distribution of information but looked after the petrol station business. The Tribunal then said: But my point is he was able to [practise] as a Christian and didn't have problems. Your problems all [arose] because of the documents that you distributed. The first appellant replied, "yes". She also responded "yes" to the Tribunal's following statement: But your parents and your sister and your husband have all been able to [practise] Christianity without any major incident except for the one occasion when your father was detained some 20 years ago. 28 Further questioning then ensued about: · the first appellant's history of involvement in the petrol station, including its financing; · the use of the petrol station as a distribution point for religious materials; and · the number of Christians in China's Fujian province, such questions being based on country information. 29 After concluding his questioning of the first appellant, the Tribunal member asked the second appellant whether there was anything he felt the Tribunal needed to know "to make a decision on your joint application". 30 The Tribunal said, and the second appellant agreed, that he had "…not made claims so you have not had any problems, it's just been [your wife] because of her documents".

THE TRIBUNAL'S DECISION 31 In its decision dated 18 May 2005, the Tribunal gave its reasons for affirming the decision of the Minister's delegate not to grant protection visas to the appellants. I refer to only so much of those reasons as is necessary to deal with the two issues raised on this appeal. 32 The Tribunal found the appellants "regularly attend Mandarin language services at the Christian Assembly of Sydney church in Roseville". The Tribunal continued: The [first appellant] named one Chinese-speaking pastor (not the author of their reference letter) but was vague about other details of the church…[she] said that she had told some people in the church - but not the author of her reference letter - about her alleged experiences in China. 33 Importantly, the Tribunal then said: As foreshadowed at the hearing, the Tribunal contacted the author of the reference letter to ask about its contents. He confirmed the [appellants'] regular attendance at the church, but was unable to provide detail on other matters such as their prior knowledge of Christianity and the extent to which they had outlined to fellow parishioners their alleged experiences in China. (Emphasis provided.) 34 Under the heading, "FINDINGS AND REASONS", the Tribunal said: The Tribunal accepts that the [first appellant] is currently a practising Christian. The Tribunal accepts the letters from the Chairman of the Christian Assembly of Sydney that the [appellants] have attended their church in Roseville, which the Tribunal confirmed directly with the church. However, the text of the letters and the limited information which the church was able to provide referred only to their church attendance. This leaves unanswered relevant questions such a whether the [first appellant's] interest in Christianity is genuine and longstanding, as claimed. (Emphasis provided.) 35 Later in its reasons for decision, the Tribunal said: The Tribunal is not satisfied that the [first appellant] will face any serious harm as a result of her adherence to Christianity. Of particular relevance is that the [second appellant], who shares the [first appellant's] faith and practices (apart from her "special role"…) returned to China voluntarily in mid-2004, by his own evidence has not suffered any harm as a result of his religion at any time in the past and has no refugee claims with respect to the future. (Emphasis provided.) 36 Soon thereafter, the Tribunal continued: Finally, the [first appellant's] practice in Australia - low-key attendance at a suburban church - indicates nothing that would give the Tribunal reason to think that her adherence has evolved and might now or in the reasonably foreseeable future attract the adverse attention of [Chinese] authorities. On this basis, the Tribunal finds that she would be free to continue her religious activities without facing a real chance of persecution if she returns to China. (Emphasis provided.) 37 Towards the end of its reasons for decision, the Tribunal referred to "the husband's return to China in mid-2004" as conflicting with an entitlement to a protection visa.

JUDICIAL REVIEW 38 The appellants applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. The Federal Magistrate dismissed the application. Her Honour rejected the two aspects of the first ground of appeal based on alleged breaches by the Tribunal of s 424A of the Act. Her Honour also dismissed other grounds of appeal. Only the s 424A ground is advanced on this appeal. It should be noted that her Honour only rejected the second aspect of the s 424A ground of appeal referred to below because she was bound to do so by authorities of single judges of this Court.

The first aspect of the s 424A ground of appeal 39 Counsel for the appellants submitted that the Tribunal, in breach of s 424A(1) of the Act, failed to provide in writing, to the first appellant, particulars of information it obtained from the Chairman of the Christian Assembly of Sydney. 40 This submission is without merit. The letter from the Chairman confirmed the first appellant's attendance at the Roseville Church. It contained no other relevant information, other than confirming evidence the first appellant gave that she commenced attending the church in November 2004. The Tribunal contacted the Chairman who confirmed the appellants' attendance at church. It appears from the passage set out at [33] above, that the Tribunal asked the Chairman about at least two other matters:

the appellants' prior knowledge of Christianity; and
the extent to which they had outlined to fellow parishioners their alleged experiences in China. The Chairman was unable to provide detail on these two matters. 41 The Tribunal was not obliged to tell the first appellant, in writing, that it had contacted the Chairman about the matters above or that the Chairman could not give it any information. That would not be the giving of "information" under s 424A of the Act that was a reason for affirming the decision under review but, rather, would be a reference to a "gap" in the material before the Tribunal. 42 The Tribunal received no information from its conversation with the Chairman about the two matters set out at [40] above. As Finn and Stone JJ said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 ('VAF') at [24], "information" in s 424A did not: …extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps. 43 In NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205 ('NBKS') at [34], Weinberg J said that the analysis of the passage above from VAF in Allsop J's judgment in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 explains that VAF does not stand for the proposition that an omission could never constitute "information" under s 424A of the Act. Importantly, in NBKS (2006) 156 FCR 205 at [39], Weinberg J said, and I agree, that: It seems to me that each case must depend upon its own particular circumstances. There is no reason in principle why an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A, than a positive statement. That is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party. 44 In this appeal, the Chairman's inability to shed light on the two matters raised with him by the Tribunal is not probative of anything. The matters were neutral considerations in the Tribunal's assessment of the first appellant's case. It simply resulted in a gap in the evidence which did not support, or detract from, what the first appellant had put to the Tribunal. It did not form any part of the reasons of the Tribunal for rejecting the review applications before it. The first appellant's own evidence before the Tribunal suggests her involvement at the church was low-key; it consisted of weekly worship. She said she had not told the Chairman about what happened to her in China. She said she had told some "brothers" at the Church, but it is plausible that they did not tell the Chairman. The Tribunal's inquiry to the Chairman elicited no relevant material which was adverse to the appellants' case on review. Section 424A of the Act did not apply to it and her Honour below was correct in coming to that view.

The second aspect of the s 424A ground of appeal 45 Counsel for the appellants submitted that s 424A of the Act was enlivened by the Tribunal's reliance on the following information (evidence of the second appellant) as part of its reasons for affirming the delegate's decision: · that he returned to China voluntarily after travelling to Australia in mid-2004; · that he had not suffered persecution in China because of his religion; and · that he had no refugee claim in his own right. 46 Counsel for the Minister concedes that these points each fall within s 424A(1) as "information that the Tribunal considers would be…part of the reason for affirming the decision under review". However, counsel for the Minister contends that the information is exempt from being given to the appellants by s 424A(3)(b) as information "that the applicant gave for the purposes of the application". 47 Counsel for the Minister contends that the words "the applicant" include "the applicants" where there are joint applicants or two applicants for review of a delegate's decision. He referred to s 23 of the Acts Interpretation Act 1901 (Cth) in that regard. He was unable, in the course of oral argument, to point to any particular policy reason based on the provisions of Pt 7 of Div 4 of the Act as to why each applicant for review should not individually have the benefit of s 424A, and why adverse material emanating from a co-applicant, not necessarily in the presence of the other co-applicant, should be treated differently from adverse material from a non-applicant witness. I refer below to some policy matters raised in submissions filed after the hearing. 48 Counsel for the Minister referred to the judgments of this Court which the Federal Magistrate considered, correctly, obliged her Honour to decide this point adversely to the appellants. The first of those was my judgment in MZWMQ v Minister for Immigration & Indigenous Affairs [2005] FCA 1263 ('MZWMQ'). At [24] in that judgment I said: As a consequence of a matter raised on behalf [of] the first respondent as a model litigant, the Court has also considered the possible impact on this appeal of the fact that the RRT gave no written notice to the first appellant about its intention to rely upon adverse evidence of the second appellant. Whatever other answers there may be to any submissions, if put, in reliance of that aspect of SAAP, s 424A(3)(b) of the Migration Act 1958(Cth) operates to excuse the RRT from giving any written notice in the circumstances. That is because the second appellant was an applicant before the RRT; see by way of analogy, Minister for Immigration and Multicultural and Indigenous Affairs v Awan(2003) 131 FCR 1 at [58]. 49 The observations in MZWMQ [2005] FCA 1263 were made without the benefit of opposing submissions. In that appeal, the appellant represented himself. By way of contrast, this Full Court has the benefit of detailed submissions on the issue. 50 Justice Young followed MZWMQ [2005] FCA 1263 in Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 ('Applicant M47/2004'). His Honour relied on an additional matter, not referred to in MZWMQ [2005] FCA 1263. Justice Young said that reg 1401(3)(c) of the Migration Regulations 1994 (Cth) supported the approach taken in MZWMQ [2005] FCA 1263. That regulation allows an application by a person claiming to be a member of the family unit of a person who is an applicant for a protection visa to be made at the same time and place as, and combined with, the application of that other person. However, that regulation deals with an application to a delegate and not with an application to the Tribunal. I do not consider that it supports the views expressed in MZWMQ [2005] FCA 1263 at [24]. 51 I no longer adhere to the views I expressed in MZWMQ [2005] FCA 1263 for these reasons: · the majority judgments in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, support the view that the chief purpose of Div 4 of Pt 7 of the Act is, as McHugh J said at [55]: …to accord procedural fairness to applicants in determining whether a decision of the minister or the minister's delegate should be affirmed. See also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [2], [13] and [14]. · in the second reading speech for the bill containing the proposed s 424A, Senator R Kemp referred to the introduction of "a code of procedure" for the Tribunal. He said that: This code includes such matters as the giving of a prescribed notice of the timing for a hearing, and a requirement for applicants to be given access, and time to comment, on adverse material relevant to them. · there is no good reason why an opportunity to comment on adverse material was not to be given to certain applicants for review who also had a family member who applied for review of a delegate's decision. One can readily understand the reason for s 424A(3)(b) of the Act: why give information and an opportunity to comment on it to a person from whom that information came? But a co-applicant or a family member whose review is heard simultaneously with that of another family member is in no different position to that of a non-applicant who offers information or gives evidence to the Tribunal which is adverse to an applicant. Having regard to the policy behind the provisions in Div 4 of Pt 7, that is, its procedural fairness purpose, as illustrated in the second reading speech, there is good reason to construe s 424A(3)(b) as referring to evidence that one applicant gave in circumstances where two members of a family unit had their review applications heard together. 52 I regret that I did not have the benefit of full argument on this point in MZWMQ [2005] FCA 1263. On reflection, I do not consider that the views expressed there, or as endorsed by Young J in Applicant M47/2004 [2006] FCA 176, can be sustained. 53 In post-hearing written submissions, counsel for the Minister contended that s 424A was enacted to replicate in the Tribunal the requirement imposed on the delegate by s 57 of the Act. Section 57 defines "relevant information" to include information which the Minister considers "was not given by the applicant for the purpose of the application". That is in the context of an application to the Minister for a protection visa. Under s 57, the Minister, or the delegate, does not have to give particulars of relevant information which forms part of the reasons for refusing a protection visa if that information is given by the applicant for the purpose of the application. 54 Counsel for the Minister submitted that "applicant" in s 57 must be read as "applicants" in the context of a combined application and that s 424A, as the counter-part section relevant to a review application, must be treated in the same manner with "applicant" meaning "applicants" in the case of combined applications for review. 55 Equally, s 57 may be interpreted as applying to each applicant for a protection visa. A situation may arise where a member of a family unit sends the delegate information about another member of the family unit which is damaging to that later person's case. Section 57 should not be interpreted as intending that the person whose case has been damaged by that information should not be informed of its contents and given an opportunity to comment on it. 56 Counsel for the Minister submitted that it makes practical sense for the delegate and the Tribunal to deal with combined applications at each stage of the process. He contended that a contrary approach would involve inconvenience and delay and might frustrate the provision of procedural fairness. The reasoning in the preceding paragraph demonstrates how the Minister's construction might constitute a breach of procedural fairness. However, even on the preferable construction of ss 57 and 424A, the delegate and the Tribunal would still be able to conduct combined hearings, with the proviso that they give details of prejudicial information to any applicant for a visa or for review which the delegate or the Tribunal has received from any co-applicant. It does not matter that the information might have been given in the presence of the co-applicant, for example, as in this case during the oral hearing before the Tribunal. As Weinberg J said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 ('SZEEU') at [122], "any actual unfairness to the applicant" is not the yardstick for compliance with s 424A. Further, as Allsop J said in SZEEU 150 FCR 241 at [214]: In SAAP, the majority (McHugh, Kirby and Hayne JJ) made clear that although s 424A had a statutory function of a like kind to the rules of procedural fairness, its content and operation were not controlled by those principles or their operation. 57 The Minister's counsel referred to the potential difficulty caused by the Tribunal seeking to comply with the ninety day time limit imposed by s 414A if it is required to give information in accordance with the submissions of the appellants in this case. That is not an issue that should affect the proper interpretation of s 424A. It is a resource issue which the Government can fund or can deal with by amending s 414A to allow longer time limits for applications for review from members of a family unit, being applications which are heard together. 58 The first appellant's appeal should be allowed. The review before the Tribunal was conducted on the basis that the success of the second appellant's application would depend on the success of the first appellant's application. The point of law on which the first appellant has succeeded is confined to her circumstances, but having regard to the way the review was conducted, I consider it would be appropriate to receive written submissions from counsel with respect to the order which should be made on the appeal of the second appellant. I agree with Moore J that the Minister should pay the first appellant's costs. Whatever other costs order should be made should also be addressed in the written submissions which are to be filed and served within 21 days of the publication of these reasons. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Solicitor for the Appellant: Christopher Levingston and Associates

REASONS FOR JUDGMENT FINN J 6 I have had the advantage of reading in draft the reasons of Moore J and of Marshall J. I agree with Marshall J's conclusions on both aspects of the s 424A ground of appeal and with the orders proposed. However, in light of comments made in the majority judgment of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18], I do not - and in the circumstances need not - express a view on whether, if at all, an omission could constitute "information" under s 424A of the Migration Act 1958 (Cth). I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

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