SZHUI v Minister for Immigration and Citizenship

The Tribunal's decision 4 The first appellant (henceforth referred to as 'the appellant husband') claimed that during his childhood both his father and grandfather had been persecuted due to the family's Christian beliefs. He also claimed that he had been a Christian since childhood, and that he had become involved in an underground Church in 1993. He asserted that one night in April 1997, he and two others were arrested at a Christian gathering and taken to the Public Security Bureau ('the PSB') and detained for a week. Soon after this incident the appellant husband was said to have been dismissed from his job as a cook at a hotel. The appellant husband and three other persons subsequently established the Gutian Jiling Christian Church, which was said to have grown by October 2000 to 116 members with five branches and seven bible study groups. He claimed to have been part of the Church's co-ordination committee 5 The appellant husband claimed to have been arrested in October 2000 whilst attending a baptism and subsequently taken to the PSB, interrogated and subjected to physical and mental punishment. He was then taken to a labour farm in December 2000, where he was forced to do hard physical labour and was subjected to further physical harm. He was allowed to return home following an injury to his hand in May 2001, but was prevented from participating in religious activities and had to report to the police once a week. From July 2001 until his departure from China in June 2002, the appellant husband claimed that he and two others organised hundreds of 'religious materials', which were widely read and distributed by the church. The underground church was said to have secretly arranged his trip overseas. 6 The Tribunal had serious concerns regarding the appellant husband's credibility and was not satisfied that his fear of persecution was well-founded. The Tribunal observed that the appellant husband's oral evidence was vague, inconsistent and exaggerated, and that some of his claims about his experiences were inherently implausible. For example, the Tribunal observed that the appellant husband claimed that 'he was closely monitored by the PSB yet he still managed to distribute religious materials over a lengthy period and get a passport in his real identity in February 2002 and leave China openly and legally in June 2002'. The Tribunal further observed that the appellant husband had 'claimed to fear persecution on arrival even though his church brothers and sisters helped him "escape persecution" in China'. 7 The Tribunal was prepared to accept that the appellant husband is a Christian and that he attended an underground family gathering from 1993 to April 1997, and that he was arrested and detained for a short period of time. However, the Tribunal was not convinced that he was detained for any lengthy period of time and that even if he had been dismissed from his position of employment, he was not a person of adverse interest to the authorities for reason of his religious belief and practices. The Tribunal observed that there was 'no supporting material [for those claims] whatsoever in circumstances when it could be reasonably expected to exist' and that the appellant husband asserted incorrectly that religious activity is under Government control. The appellant husband's evidence regarding his arrest in October 2000 was found to be vague and his evidence about his alleged mistreatment following his arrest and during his time at the labour camp was said to be very general. The Tribunal did accept that his hand was injured, however it found nothing to support his claims in relation to the circumstances of that injury. 8 The Tribunal was not satisfied that the appellant husband had fled China to avoid persecution for reason of his religion, observing that he did not apply or enquire about protection in Australia until after his long stay business visa was cancelled a year following his arrival. Further, the Tribunal did not accept that a well-educated businessman such as the appellant husband would not know about avenues available for seeking protection in Australia. The Tribunal referred to independent country information and accepted that such information indicated that the number of religious believers had risen rapidly in China and that that there are tens of millions of Christians practicing in underground churches across China.

The Decision of the Federal Magistrate 9 The proceedings before the Federal Magistrates Court began with a show cause application filed on 12 December 2005. The rather complex procedural history of that application, during which the appellants were represented by counsel, was succinctly outlined by Federal Magistrate Driver at [22] of his reasons for judgment, which appears as follows: '…I conducted a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) on 27 February 2006 and ordered the Minister to show cause why relief should not be granted in relation to three issues arising from an amended application filed on 8 February 2006. The operation of that order was subject to provisos which were not strictly met and a further amended application raising four grounds was filed on 17 March 2006. At the trial of this matter on 24 July 2006 it occurred to me that there might also be a fifth issue, I made orders permitting the applicant to rely on the four grounds contained in the further amended application and also gave the applicants leave to add a fifth ground provided that a second further amended application was filed by 31 July 2006. This necessitated an adjournment of the trial of the matter and I reserved the issue of the Minister's additional costs or costs thrown away by reason of the further amendment and adjournment.' 10 The grounds ultimately relied upon were those in the second further amended application, save for the fifth ground of review, which was not pressed. The grounds raised in that second further amended application, filed on 31 July 2006, were as follows: '1. The applicant wife gave detailed evidence which corroborated the applicant husband's claims, for example that "he was dismissed from his workplace" because he was in the underground movement that "the authorities came looking for him every day", that the applicant "distributed leaflets with his brothers and sisters", and that the PSB were monitoring the applicant every day: see page 14 of Tribunal's decision. The Tribunal did not make findings in relation to this corroborative evidence. In the circumstances, the Tribunal fell into jurisdictional error: see WAIJ v MIMIA (2004) 80 ALD 568. 2. The applicant "claimed to have formally established a church…in December 1998, that he and some others were arrested one night in October 2000, interrogated and mistreated and then sent to a labour camp…": page 21 of RRT decision. The Tribunal rejected these claims because "there is no supporting documentary material whatsoever in circumstances when it could be reasonably expected to exist". The applicant has two complaints about this finding. First, the Tribunal reasoned that because documentary evidence did not exist the claims were false. This reasoning is wrong. Second, the Tribunal did not raise with the applicant its concern that there was no documentary evidence and give him an opportunity to address the concern. On this basis, there was a denial of procedural fairness, being either the common law obligation of procedural fairness or procedural fairness implicit in the hearing obligation in s 426 of the Migration Act. 3. The Tribunal found that the fact that the applicant did not "seek protection on arrival" in Australia but instead delayed one year made his claims "inherently implausible": see page 20 of Tribunal's decision. The Tribunal fell into jurisdictional in making this finding for two reasons: a) The applicant gave a reasonable explanation for why he delayed one year in applying for a protection visa, specifically that he had a business visa in this period. The Tribunal's finding that the applicant's claim was "inherently implausible" was either based on no evidence or illogical, resulting in jurisdictional error. b) The information on which the Tribunal relied in making this finding was information within the meaning of s 424A of the Migration Act. The Tribunal failed to put the information to the applicant in writing, resulting in a breach of s 424A. 4. The Tribunal made the following findings in contravention of s 424A of the Act: a) The Tribunal found that "some of the applicant's claims about his experiences inherently implausible": page 20.8. In making this finding, the Tribunal relied on information which the applicant put to the first Tribunal (but not the second Tribunal) that the applicant could "get a passport in his real identity in February 2002 and leave China openly and legally in June 2002". The Tribunal failed to put this information to the applicant in writing. b) The Tribunal relied on an inconsistency between evidence the applicant gave to the second Tribunal that he was sent to a re-education through labour reform camp and to the first Tribunal that he was sent to a reform through labour camp: see page 20.7 and 21.10. The Tribunal failed to put this inconsistency to the applicant in writing. c) At page 21.3 the Tribunal relied on the fact that the applicant had failed [to] mention a lengthy detention in his earlier evidence. The Tribunal failed to put this point to the applicant in writing. 5. The second Tribunal, in dismissing the Applicant's application, relied on evidence given by the Applicant to the first Tribunal at the hearing before the first Tribunal as well as the Findings and Reasons of the first Tribunal. The second Tribunal was not permitted to do so. In the circumstances the second Tribunal fell into jurisdictional error.' 11 In relation to the appellants' first ground of appeal, Driver FM found that the Tribunal did have regard to the second appellant's evidence, which was said to have been presented for its corroborative value. His Honour found that if 'her evidence corroborated anything, it corroborated the inconsistency of the [appellant husband's] own evidence' in support of his claims as to being dismissed from his employment because of his religion, his role as an important member of an underground church established by him in his local area, and the constant monitoring of him by the PSB. Taking into account the principles enunciated in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [27] (Lee and Moore JJ) and Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [59] (Sackville J), his Honour found that '[h]aving described her evidence, it was unnecessary for the presiding member to consider it further'. 12 The Federal Magistrate found that the appellants' second ground of appeal was in fact a mischaracterisation of the Tribunal's reasoning. His Honour observed 'that whether or not the apparent failure by the Tribunal to raise with the appellant husband its concern about an absence of supportive documentary evidence was procedurally unfair under the general rule is immaterial'. The reasoning of the Tribunal was held to be neither illogical nor unreasonable and that s 422B operated to relevantly exclude the common law fair hearing rule. His Honour further observed that 'whatever the obligations imposed by s 425 may be, that section does not import by the back door the common law fair hearing rule'. 13 The Federal Magistrate then dealt with the issues put forward in grounds three and four of the appellants' second further amended application relating to s 424A of the Migration Act 1958 ('the Act'). First, in the light of the decisions of SZBQS v Minister for Immigration and Multicultural Affairs [2005] FMCA 1066 at [14] and SZGNY v Minister for Immigration and Multicultural Affairs [2006] FMCA 1142 at [21] (Smith FM), his Honour found that the Tribunal's use of evidence given by the appellant husband to the first Tribunal in support of an adverse credibility conclusion (about the applicant's tardiness in seeking protection) was information falling within the exception in s 424A(3)(b) of the Act. In that regard, his Honour made the following observations at [63] of his reasons for judgment: '…Where the [Tribunal] conducts a lawful review of a delegate's decision, the [Tribunal] becomes functus officio and a second review application cannot be made. Where the [Tribunal] commits a jurisdictional error, so that the review process must be repeated, there remains only one review application: the obligation on the [Tribunal] is to reconsider the application…Where an applicant puts information to a review tribunal for the purposes of his or her review application, that information is not withdrawn where the tribunal falls into jurisdictional error. Unless the information is specifically retracted by the applicant, it remains available to the tribunal on a reconsideration of the review application. Further, it does not lose its character as information presented to the tribunal for the purposes of "the [review] application": s 424A(3)(b).' His Honour made the same finding in relation to the extent that the fourth ground in the appellants' amended application relied upon inconsistencies found between the appellant husband's evidence to the first Tribunal and his evidence to the second Tribunal. 14 To the extent that the fourth ground in the appellants' amended application relies upon the silence of the appellant husband at the first Tribunal hearing, Smith FM found that it was arguable that the Tribunal misunderstood the appellant husband's evidence concerning the detention of Mr Meng, but that, in any event, such a misunderstanding did not constitute a jurisdictional error. His Honour found it to be 'simply an error of fact'. In relation to the contention that the Tribunal drew an adverse credibility conclusion about the appellant husband as to his evidence concerning the detention of Mr Meng, his Honour observed that the Tribunal understood the appellant husband 'to be saying in his evidence to the second Tribunal for the first time that Mr Meng had been detained for five years'. The Federal Magistrate further observed that 'on the balance, I conclude that the apparent inconsistency in the [appellant husband's] evidence, even if it was based in part upon a comparison with his protection visa claims, did not on the facts of this case give rise to an obligation of disclosure under s 424A(1)'. As the appellant failed to demonstrate any jurisdictional error in the decision of the Tribunal, the appellants' application was dismissed.

The proceedings before the Federal Court 15 The appellants filed a notice of appeal to the Federal Court on 31 October 2006, which appears as follows: '1. There was an error of law in the Tribunal's decision constituting a jurisdictional error. 2. There was procedural error in the Tribunal decision constituting are [sic] absence of natural justice. 3. The judgment of the Judge Driver FM failed to consideration [sic] the Tribunal constructively 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 purposes. 4. The judgment of Judge Driver FM failed to consider that the Tribunal member did not give the applicant any consideration as to whether the circumstances of the proceedings were such that it should rely on the country information make [sic] such conclusion to the applicant not to grant the protection visa. 5. 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 circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise. 6. Further more, the Tribunal has failed to comply with its obligations under section 424A of the Act. The Tribunal must give to the Applicant particulars of any information that the Tribunal considers would be a reason, or 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. 7. Regarding other issues raised from the Tribunal's decision, it is obviously ill-founded without any substantial evidence expecting it is erroneously based. Its poor knowledge and understanding about member [sic] of Christians practicing in underground churches in China.' 16 The Minister submitted that the seven grounds of appeal raised by the appellants' notice of appeal are in general and unparticularised form and that the appellants were represented by counsel below and had 'every opportunity to put their case to the Court below'. It was contended that they should not be allowed to recast their case on appeal. The first ground was said to allege that there was an error of law in the Tribunal's decision constituting jurisdictional error, yet the ground provided no particulars identifying with any specificity the matters said to constitute this error. In relation to the second ground of appeal it was submitted by the Minister that the learned Federal Magistrate correctly held that the natural justice hearing rule was excluded by s 422B. However, the Minister also submitted that Federal Magistrate Driver's comments about s 425 must now be viewed in the light of the High Court's recent decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [33] to [34] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), which reads as follows: '33. The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to "the issues arising in relation to the decision under review" is important. 34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision‑maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision‑maker will have given reasons.' The Minister asserted that even in the light of SZBEL, any allegation of a breach of s 425 as contended below in the second ground of the appellants' further amended application was not made out on the evidence. I find force in the Minister's submissions in relation to both the first and second ground of appeal before this Court. 17 The appellants' third ground of appeal put forward a number of allegations of error, including: the Tribunal constructively failed to exercise its jurisdiction; the Tribunal failed to afford the appellant natural justice; and the Tribunal applied the incorrect test of persecution for a Convention purpose. The Minister submitted, in my opinion correctly, that the Tribunal stated the law in relation to persecution under the Convention in unobjectionable terms. There is nothing to indicate any misapplication of the law by the Tribunal in this regard. 18 The fourth ground of appeal appears to complain that the Federal Magistrate failed to consider the Tribunal's use of country information. No such ground was raised below, and, in any event, it was a matter for the Tribunal to attribute significance, or any lack thereof, to the country information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ). The fifth ground of appeal must also fail, as it identifies no alleged error in the law and is no more than a statement of the law. The sixth ground of appeal alleges a breach of s 424A and the Minister correctly submitted that allegations of breaches of s 424A were raised below and the Federal Magistrate correctly rejected those allegations. The seventh ground appears to comprise a challenge to the Tribunal's findings of fact and the merits of its decision. As such, it fails to constitute a proper ground of appeal; the Minister referred the Court to NAHI at [10] in support of that proposition. 19 The appellant husband was unrepresented at the hearing of the appeal, and failed to provide any submissions in writing, notwithstanding that he had been directed to do so. He also failed to add anything of relevant significance to the grounds of appeal by way of oral submissions to the Court. It follows that the present application must be dismissed with the usual consequences as to costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti

Counsel for the First Respondent: Mr J A C Potts