SZGYT v Minister for Immigration & Citizenship

Proceedings before The Tribunal 8 A decision adverse to the appellant was made by the Tribunal on 2 October 2003. On 21 September 2006 that decision was quashed by order of the Federal Magistrates Court and the matter remitted to the Tribunal. 9 The appellant submitted two statutory declarations of Mr Ke Wei Liu to the Tribunal. Mr Liu stated in his first statutory declaration dated 20 October 2006 that he had met the appellant at Darling Harbour on l September 2002, that they often practised Falun Gong and studied Falun Dafa together, and that the appellant is a genuine Falun Gong practitioner and believer. It seems that Mr Liu gave evidence at the second Tribunal hearing and his second statutory declaration dated, 19 December 2006, stated that some information he gave at that hearing was inadvertently incorrect because he was fatigued by the work involved in setting up his restaurant in Auburn. 10 The appellant also submitted seven statutory declarations from different people attesting to the fact that they had known the appellant as a Falun Gong practitioner for periods of between one year and four years, that they had 'many times' witnessed him practising Falun Gong at Darling Harbour and Campsie, and studying Falun Dafa at Campsie and Parramatta. 11 These statutory declarations are each dated 18 or 19 December 2006. They state that: (a) In each case the declarant had known the appellant for a considerable period (22 months to 4 years). (b) The declarants had witnessed him variously practising Falun Gong, and studying Falun Gong in different places on different occasions. (c) He lives his life according to the principles of Falun Gong. 12 The second Tribunal decision, handed down on 16 January 2007, was remitted to the Tribunal by order of the Federal Magistrates Court, as was a third decision. The matter was again remitted to a reconstituted Tribunal, which held another hearing on 15 October 2008. 13 Prior to the fourth hearing the Tribunal sent the appellant another invitation to comment on information considered to be adverse, including information to the effect that he knew little about Falun Gong at his first Tribunal hearing. The appellant replied, through his new solicitors, on 10 October 2008. 14 The decision the subject of the judgment of the Federal Magistrates Court from which this appeal is brought (the fourth Tribunal decision), was made on 28 October 2008.

The Fourth Tribunal Decision 15 The fourth Tribunal noted its concerns about the appellant's case in its 'Findings and Reasons' as follows: (a) The appellant's evidence about why his family could not leave their home to avoid harassment by the authorities was inconsistent; (b) at the first Tribunal hearing the appellant could not name the five Falun Gong exercises. It also considered that he had difficulty explaining central facets of Falun Gong beliefs; (c) the appellant's evidence about how he evaded the authorities in Shenyang was inconsistent, and the Tribunal was not satisfied that he had been truthful; (d) nor was it persuaded that he had been truthful about how he obtained his passport, in view of the country information available to the Tribunal and what was said to be the 'vagueness' of his explanations; (e) it thought that the appellant should have been able to recall more detail about the alleged confiscation of his business (even though, according to his initial statement he was not there at the time). 16 The combination of these matters caused the Tribunal to reject all the appellant's claims concerning events in China (at [87]). It then addressed the appellant's corroborative evidence in the following terms (at [88]): The applicant spoke of his practice and study of Falun Gong and his participation in demonstrations against the Communist party and other Falun Gong related activities in Australia. The applicant provided photographic evidence of his engagement in some activities. He provided a number of statements from fellow practitioners and he also provided a newspaper extract bearing his photograph. The photograph and a brief article also appeared on the internet. Having regard to this evidence and the applicant's oral evidence, the Tribunal accepts that the applicant has engaged in the practice of Falun Gong and in other Falun Gong related activities in Australia. The Tribunal also accepts that the applicant may be perceived by other practitioners as being a Falun Gong practitioner. However, the Tribunal has found that the applicant did not have any involvement with Falun Gong in China and formed the view that the applicant did not have any commitment to Falun Gong in China. The Tribunal has also found the applicant not to be a witness of credibility and to have been untruthful with respect to his claims. 17 The Tribunal was not satisfied that the appellant had engaged in conduct in Australia other than for the purpose of strengthening his claim to be a refugee. Therefore it applied s 91R(3) of the Migration Act 1958 (Cth) ('the Act') and disregarded the appellant's conduct in Australia in assessing his claims (at [88]). 18 Having so decided, the Tribunal made further findings to the effect that the appellant's activities in Australia had not come to the attention of the Chinese authorities (at [89] - [90]), and that he would not engage in the practice of Falun Gong were he to return to China. It found, as a consequence that he would not face persecution because of his association with Falun Gong (at [91]). 19 The decision under review was affirmed.

The Case in the Federal Magistrates Court 20 The appellant advanced two arguments in the Federal Magistrates Court. They were: (a) That in applying s 91R(3) the Tribunal failed to consider the appellant's corroborative evidence from witnesses who stated that the appellant was 'a genuine Falun Gong practitioner'; and (b) the Tribunal failed to consider evidence of the appellant's prompt application for a Protection visa. 21 The second of these grounds was dismissed on the basis that it was not something that had to be considered in the exercise of the Tribunal's power (at [23] - [24]). That reasoning and conclusion were not challenged on this appeal. 22 In dealing with the first ground of the application, his Honour accepted the principle that if the Tribunal ignores relevant material that may have a direct bearing on the decision which it must reach, and its exercise of its power is affected as a result, then its decision will be affected by jurisdictional error. However, his Honour found that the contents of the corroborative material (the statutory declarations) were considered; the Tribunal did more than pay lip service to the existence of the statutory declarations (at [20]). His Honour also found that the Tribunal had rejected the appellant as a witness of credit. That, in his Honour's view, gave the Tribunal a solid foundation to reject the appellant's claims, notwithstanding the statutory declarations corroborated the apparent genuineness of his commitment to Falun Gong (at [21]). 23 The application was dismissed with costs.

The Appellant 24 The appellant submitted that, as most recently stated in SZLPO v Minister for Immigration [2009] FCAFC 51 at [92], general principles of administrative law require that the Tribunal take into account all information in its possession that is relevant. As the learned Federal Magistrate acknowledged at [17], the fact that the Tribunal refers to information or evidence does not of itself mean that the Tribunal gave that evidence proper consideration, citing, albeit at the referral of the appellant, NAJT v Minister for Immigration (2005) 147 FCR 51 at [212]. 25 The appellant pointed out that in NAJT, Madgwick J (at [212]) cited Tickner v Chapman (1995) 57 FCR 451 at 462 to the effect that to give genuine consideration to something is to engage in an active intellectual process with regard to it. Such consideration, according to the appellant, involves more than a superficial overview of relevant documents. It involves an examination of what they actually say (cf. Fang Wang v Minister for Immigration & Multicultural & indigenous Affairs [2003] FCA 1044, esp. at [54] - [55]) 26 The Tribunal accepted, the appellant conceded, partly on the basis of the statutory declarations submitted on behalf of the appellant, that '... the [appellant] has engaged in the practice of Falun Gong and in other Falun Gong related activities in Australia'. The appellant conceded that the Tribunal also accepted that others perceived him to be a Falun Gong practitioner. On the other hand, the appellant submitted that the statutory declarations went considerably further. Each declarant had witnessed the appellant's Falun Gong activities over a considerable period of time, and stated that the appellant lives his life according to the principles of Falun Gong. These matters went directly to the genuineness of the appellant's Falun Gong practice in Australia. 27 The appellant submitted that there was no indication of what the Tribunal made of the length of time over which these people had seen the appellant engage in these activities. Nor was there any indication of what it made of their stated knowledge that he lived according to the principles of Falun Gong over these periods. The Tribunal did not say that it disbelieved the people who made these statutory declarations. Rather, it is clear that it accepted at least a part of what they declared to be true. It would have been difficult for it to have applied s 91R(3) unless it rejected the balance. But the Tribunal was silent on that issue, and in the appellant's submission, the Court should conclude that it did not turn its mind to what was actually in the statutory declarations. 28 His Honour also found that the Tribunal's rejection of the appellant as a witness of credit provided a basis for the rejection of his claims (at [21]). That was not justification, the appellant submitted, for the Tribunal failing to consider corroborative evidence. Reference was made to what Finkelstein J said in SZDGC v Minister for Immigration (2008) 105 ALD 25 at [27]: [I]t is false reasoning to find that the corroborative evidence was not authentic because the tribunal without regard to that evidence found the appellant to be dishonest. The tribunal should have had regard to the documents when assessing the appellant's credibility. In that process it might have found the documents not to be authentic. But that would need to have been for independent reasons, unless the appellant's evidence fell into the S20/2002 category. It plainly did not fall into that category. 29 In oral submissions, counsel for the appellant referred me to what was said by Collier J in SZKHD v Minister for Immigration & Citizenship [2008] FCA 112 at [23], [26] - [28] and to what a Full Court of this Court said in Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 at [31]: Counsel drew attention to something not mentioned anywhere in the Tribunal's reasons for decision. The language analysis report, upon parts of which the Tribunal placed reliance, commenced with the following statement, under the heading "Expert opinion": "The speech on the tape is Dari. The person speaking has obviously his language background in Afghanistan." And then at [44]: The second question concerns the Tribunal's failure to consider the significance of the linguist's opinion that the applicant "has obviously his language background in Afghanistan". The applicant's language background was of pivotal importance to the only real issue the Tribunal had to determine: his nationality of origin. The Tribunal had before it a report about that matter obtained by the Department from an independent person with apparent expert qualifications. The genuineness of the report was not in doubt. The Tribunal member was aware of the report, and relied on it in some respects, yet she failed to have regard to what was probably its major finding: the linguist's opinion about the applicant's linguistic background. Consistently with what was said in Yusuf, it must be concluded that the Tribunal "did not consider the matter to be material" (Gleeson CJ). Yet it plainly was. In thinking otherwise, the Tribunal erred in law. Having regard to the significance of the linguist's opinion, the Tribunal's failure to deal with it constituted a failure to exercise its jurisdiction: see Gaudron J in Yusuf at 15 and McHugh, Gummow and Hayne JJ at paras 78 and 82.

The Minister 30 The Minister pointed to the Tribunal's findings at [88] of its reasons where it said: The applicant spoke of his practice and study of Falun Gong and of his participation in demonstrations against the Communist party and other Falun Gong related activities in Australia. The applicant provided photographic evidence of his engagement in some activities. He provided a number of statements from fellow practitioners and he also provided a newspaper extract bearing his photograph. The photograph and a brief article also appeared on the internet. Having regard to this evidence and the applicant's oral evidence, the Tribunal accepts that the applicant has engaged in the practice of Falun Gong and in other Falun Gong related activities in Australia. The Tribunal also accepts that the applicant may be perceived by other practitioners as being a Falun Gong practitioner. However the Tribunal has found that the applicant did not have any involvement with Falun Gong in China and formed the view that the applicant did not have any commitment to Falun Gong in China. The Tribunal has also found the applicant not to be a witness of credibility and to have been untruthful with respect to his claims. The Tribunal is not satisfied that the applicant had engaged in conduct in Australia, including his participation in Falun Gong related activities such as practice and study sessions, demonstrations, holding placards and other Falun Gong and anti-Communist or anti-Government activities, otherwise than for the purposes of strengthening his claim to be a refugee. The Tribunal is not satisfied that the applicant commenced and continued to engage in such conduct throughout his residence in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal finds that the photographs the applicant presented to the Tribunal depicting the applicant's participation in those Falun Gong practice and demonstrations came about as an immediate consequence of the applicant's conduct in participating in these activities. In accordance with s. 91R(3), the Tribunal disregards both the applicant's conduct and the photos. (Emphasis added) 31 The Minister also referred to the way in which his Honour approached and dealt with the appellant's submission below that the content of the statutory declarations submitted to the Tribunal were not properly taken into account by the Tribunal, if regard is had to the passage extracted in [30] above. At [16] - [22] his Honour said: 16. The applicant submitted that three statutory declarations submitted to the Tribunal by the applicant, which purportedly supported the genuineness of his Falun Gong beliefs while in Australia, were not properly taken into account by the Tribunal when it had regard to s.91R(3) of the Act and to whether the applicant had engaged in Falun Gong activities otherwise than for the purpose of strengthening his claim to be a refugee. Those statutory declarations are reproduced in the Court Book … and the thrust of each is that the applicant was a genuine adherent of Falun Gong based on the declarants' acquaintanceship with him in Australia. 17. It was submitted that although the Tribunal did, when undertaking its s.91R(3) considerations, refer to those statements in the following terms: He provided a number of statements from fellow practitioners ... (CB 188) in truth it failed to consider them. In making this submission, the applicant referred to NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 where it was held that the simple fact that a Tribunal refers to evidence in its decision does not, of itself, show that the Tribunal gave such evidence proper consideration. In that case, it was held that: ... given the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to "have regard" to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [58], a "decision-maker may be aware of information without paying any attention to it or giving it any consideration". In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration - had in Black CJ's phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in 'an active intellectual process' in relation to the letter - yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so. (per Madgwick J at 92-93 [212], Conti J agreeing at 96 [229]) … 20. If the Tribunal ignores relevant material which may have a direct bearing on the decision which it must reach, and its exercise of its power is affected as a result, then its decision will be affected by jurisdictional error. However, in this matter it is apparent that the Tribunal did more than merely pay lip service to the existence of the statutory declarations and, in fact, considered their contents. Shortly after the passage quoted above at [17], the Tribunal continued: The Tribunal also accepts that the applicant may be perceived by other practitioners as being a Falun Gong practitioner. (CB 188) That is to say, the Tribunal had regard to the contents of these statutory declarations. 21. It was also submitted that if the Tribunal were required to take those statutory declarations into account, their corroborative nature could not be dismissed without cogent material justifying such a course: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568. Although the Tribunal noted these references, it went on to explain that it rejected the applicant as a witness of credit and also his claim to have been a bona fide Falun Gong practitioner in Australia. Earlier in its reasons, the Tribunal had found the applicant to have been untruthful in relation to his alleged Falun Gong practices in China. It is apparent that this conclusion poisoned the well and formed a solid foundation for the Tribunal's rejection of the applicant's veracity concerning his activities in Australia, notwithstanding that the statutory declarations corroborated the apparent genuineness of his commitment: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 per McHugh and Gummow JJ at 70 [49]. 22. For these reasons, I conclude that the Tribunal did give adequate consideration to the statutory declarations relied upon by the applicant and that no error is disclosed because it discounted their ostensible corroborative value. For these reasons, I do not find that the Tribunal's decision to disregard the applicant's conduct in Australia pursuant to s.91R(3) was effected by jurisdictional error. 32 In the Minister's submissions, his Honour was correct in the conclusion he reached at [22] of his reasons. According to the Minister, a finding of jurisdictional error on the part of the Tribunal would only be open if the Tribunal overlooked relevant material and, so the submission went, it is clear that the Tribunal did not overlook what the appellant identified as being relevant, namely, the perception of other Falun Gong practitioners that, based on their observation and experience of the appellant's activities, he was a diligent/genuine Falun Gong practitioner and lived his life towards the principles of Falun Dafa. 33 The Minister submitted that the fact that the Tribunal did not refer to the express terms of the declarations which are identified as being relevant is not a bar or impediment to a conclusion that the Tribunal engaged in 'an active intellectual process' in relation to them if it is apparent from the text and context of the Tribunal's reasons that that process was engaged in. 34 In this regard, the Minister pointed to those parts of the Tribunal's reasons extracted in [30] above that are emphasised as providing the textual engagement; and the Tribunal's anterior findings rejecting the appellant as a witness of credit and his alleged Falun Gong activities in China as providing the context which explains the way in which the textual engagement was expressed. 35 I agree with these submissions, even if their precise articulation owes more to my response to them than the terms in which they were put by the Minister. 36 This is one of those cases where what was said by a Full Court (French, Sackville and Hely JJ) of this Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [46] - [47] needs to be borne in mind: [46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 37 The observation in the last sentence of [47] of WAEE is not this case. 38 For the foregoing reasons, the appeal must be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 1 July 2009 Counsel for the Appellant: Mr LJ Karp