SZKBE v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant who is identified for the purposes of these proceedings as 'SZKBE' was born in Shenyang in the People's Republic of China on 17 December 1960. She obtained a passport which was issued in Liaoning on 11 August 2005. On 4 April 2006 she secured a temporary business visa. On 22 May 2006 she departed the People's Republic of China and entered Australia on 23 May 2006, travelling under the passport issued in her name and utilising the visa which she obtained on 4 April 2006. 2 On 15 June 2006 she applied for a Protection (Class XA) visa. On 21 August 2006 her application was refused by a delegate of the Minister. 3 On 5 September 2006 she applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. On 19 September 2006 she was forwarded an invitation to a hearing before the Tribunal on 27 October 2006. That invitation indicated that the Tribunal had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. 4 She was invited to come to a hearing of the Tribunal to give oral evidence and present arguments in support of her claims. She in fact participated in a hearing before the Tribunal by video link on 27 October 2006. 5 After the hearing, a letter was sent by the Tribunal to the appellant dated 2 November 2006. That letter was headed, 'Invitation to comment on information'. It included the following: 'At the Tribunal hearing held on 27 October 2006 you were asked a number of questions in relation to your claim that you are a Falun Gong practitioner. In your answers you demonstrated very limited knowledge of and familiarity with Falun Gong practices, including in particular the key exercises which all Falun Gong practitioners must perform. On the basis of this information the Tribunal is not satisfied that you are a Falun Gong practitioner. … … You stated that your passport was arranged collectively by a travel agency through their special relationship. … The Tribunal considers it implausible that a travel agency would undertake to obtain a passport on behalf of a client in violation of established procedures. The Tribunal considers it more likely that you obtained a passport yourself and this indicates that you do not fall into a group of persons who would be denied passports by the Chinese authorities. … The above information is relevant because it indicates that you are not a Falun Gong practitioner and consequently there is no real chance that you would suffer persecution because of your involvement with Falun Gong. You are invited to comment on this information. …' (Emphasis added) 6 The appellant provided a response to this letter to the Tribunal on 27 November 2006. On 6 December 2006 the Tribunal member who had conducted the hearing decided the application for review adversely to the appellant affirming the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa. The decision was handed down by the Tribunal on 3 January 2007. 7 On 18 January 2007 the appellant applied to the Federal Magistrates Court of Australia ('the Federal Magistrates Court') for an order to show cause why constitutional writ relief should not be granted in respect of the Tribunal's decision. 8 On 20 April 2007 an Amended Application was filed in the Federal Magistrates Court. That Amended Application was heard by a Federal Magistrate and decided adversely to the appellant on 7 November 2007. In the course of her reasons for judgment the learned Federal Magistrate drew attention to the letter of 2 November 2006, which her Honour said identified concerns which the Tribunal had about the appellant's claims. The appellant appeared in person with the assistance of a Mandarin interpreter before the learned Federal Magistrate. Reference was made by her Honour to the appellant's Amended Application of 20 April 2007 and an affidavit sworn by the appellant on 17 April 2007 which annexed a transcript of the Tribunal's hearing. The learned Federal Magistrate recorded that the appellant declined to say anything further in support of her application. Her Honour then said at [20]: 'The amended application relied upon by the Applicant is a long rambling statement that essentially disagrees with the findings and conclusions of the Tribunal. However, at the heart of the Applicant's complaint appears to be an allegation that the Tribunal failed to give the Applicant for comment, before the hearing, independent country information to which the Tribunal referred; and that the Tribunal only referred to independent country information that was not in favour of the Applicant. The Applicant also made a bare assertion of "procedural errors in the Tribunal's decision constituting an absence of natural justice."' 9 Later in her Honour's reasons she adverted to the fact that the complaint about a denial of natural justice had not been particularised in the Amended Application. Her Honour then said at [24]: 'The Tribunal's obligations of natural justice are confined by s.422B of the Act to compliance with pt.7 div.4 of the Act. Whilst s.424A of the Act forms part of pt.7 div.4, this Court has already found that there was no breach of that section by the Tribunal. …' 10 Her Honour concluded that the Tribunal's decision was not affected by jurisdictional error. Accordingly, her Honour ordered that the proceeding before her, commenced by way of application filed 18 January 2007, be dismissed. She further ordered that the appellant pay the costs of the respondent Minister fixed in the sum of $5,000.00. 11 The matter has come before this Court pursuant to a Notice of Appeal from the learned Federal Magistrate's decision of 7 November 2007. The grounds of appeal specified in the Notice of Appeal were: '1. The Tribunal did not comply with s422B & s424A of the Migration Act 1958. 2. The Tribunal breached the rules of natural justice in connection with the making of the decision. The respondents denied the applicant natural justice by not considering the context in which the applicant will face persecution and serious harm for being a Falun Gong practitioner in China. 3. The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. 4. The respondents have not considered the evidence which is in favour of the applicant. They have only considered the evidence which is not in favour of the applicant. 5. The Tribunal cited a number of Country Information. But the Tribunal did not comply with its obligations under s424A of the Migration Act 1958 ('the Act').' 12 The matter which is of concern to me in this case is that which has been highlighted and which is referred to in the Tribunal's letter to the appellant of 2 November 2006, which was, of course, written approximately a month before the Tribunal member handed down her decision. The letter, inviting comment on the information contained in it, was signed by a Tribunal Officer, being a person who was different from the Tribunal member who had conducted the hearing and, of course, decided the application for review. It seems to me that nothing turns upon the fact that it was signed by a Tribunal Officer rather than by the Tribunal member who was responsible for deciding the matter. It is evident from the terms of the letter itself that the initiative for the provision of the information must have been the Tribunal member who ultimately decided the matter. 13 It is important to note that in the first paragraph of the letter the author did not say: '… On the basis of this information the tribunal may not be satisfied that you are a Falun Gong practitioner.' Later, the letter did not indicate that: 'The tribunal may consider it implausible … . The tribunal may consider it more likely … and this indicates that you may not fall into …' Furthermore, the letter did not indicate that: 'The above information is relevant because it could indicate that you are not a Falun Gong practitioner…' 14 The Tribunal member in her 'STATEMENT OF DECISION AND REASONS' made reference to the letter of 2 November 2006 and the appellant's response to it. She said: 'Request for comment pursuant to s.424A : On 2 November 2006 the Tribunal wrote to the review applicant seeking her comments on information which indicated that she was not a Falun Gong practitioner, that she did not have a well-founded fear of persecution because of her Falun Gong practice and that she did not fall into a group of persons who would be denied passports by the Chinese authorities.' (Emphasis added) 15 I would observe that the word 'indicated' is not consistent with the words of the letter itself which seemed to me to record that the Tribunal had a closed mind about the matters highlighted by me above at [5]. 16 It seems to me that if the Tribunal hearing in this matter had taken place after the High Court handed down its reasons for decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 ('SZBYR'), the s 424A letter, to which reference has been made, would not have been sent. In that case the High Court gave close attention to the circumstances in which s 424A was engaged. 17 In their joint reasons for judgment, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ commenced their consideration of s 424A by observing that, firstly, its effect was mandatory, in that a breach of it constituted jurisdictional error, and secondly that its temporal effect was not limited to the pre-hearing stage, referring to the Court's earlier judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (see SZBYR at [13]) 18 At [22] their Honours drew attention to the 'limited scope of s424A' and at [15] and [21] they said: '[15] … Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. … [21] … Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. …' 19 Importantly, their Honours found at [17] that use of the future conditional tense (would be) rather than the indicative, by which I would understand their Honours to have meant 'is', strongly suggested that 'the operation of s424A(1)(a) [was] to be determined in advance - and independently - of the tribunal's particular reasoning on the facts of the case.' At [18] their Honours approved a passage in the joint reasons for judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 saying: '…Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": …does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it 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, etc … If the contrary were true, s424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence…' 20 Having indicated that it is unlikely that a letter such as that which the Tribunal sent to the appellant in this matter on 2 November 2006 would have been sent were the matter before the Tribunal today, the fact of the matter is, it was sent and it did, in my opinion, in the passages which have been highlighted, indicate that the Tribunal had a closed mind on the matters highlighted. Even if this was not intended, the matter fell into the category of one where it could legitimately be said that there was an apprehension of bias. 21 I have been helpfully referred to some authorities by counsel appearing for the respondent Minister which bear upon the matter. The first is a judgment of a Full Court constituted by Branson, Finn and Bennett JJ in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. That was a case where a s 424A letter had been sent to the respondent after the hearing before the Tribunal. The case is not on all fours with that which is presently before the Court. 22 The letter included material which was preceded by the words 'The Tribunal has received reliable information as follows:'. Thereafter information was recorded which, in turn, was followed by: 'This information is relevant because it may undermine the credibility of the [respondent] and may cause these documents to be disregarded.' (Emphasis added) 23 The Federal Magistrate, in that case, concluded that the Tribunal did not afford the respondent procedural fairness because there was a reasonable apprehension of bias; ie that the Tribunal member had already made up his mind to affirm the decision of the delegate at the time that the respondent was invited to comment on the information set out in the s 424A letter. (See [11]) At [21] the Full Court said: '…there is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate's decision. What is critical is that the member not close his or her mind against any additional material that might possibly prove probative. … (Emphasis added) 24 The letter of 2 November 2006 in this case gives rise to serious doubt as to whether or not the Tribunal maintained an open mind in the matter. It seems to me to suggest that the Tribunal member did 'close her mind' against any additional material that might possibly prove probative. 25 Another case to which I have been directed is the decision of Cowdroy J in SZBLY v The Minister for Immigration and Citizenship [2007] FCA 765. That was a case where a s 424A letter was sent but was not received by the appellant's agent, who was a solicitor, prior to the handing down by the Tribunal of its decision. The Tribunal had in its decision formed a view adverse to the appellant. It would appear that the Tribunal member had proposed to recall the decision and to reissue his invitation to comment on the s 424A information, that had been referred to in the letter which was never received. Apparently, the letter had been misdirected by the Tribunal. 26 Cowdroy J concluded at [32]: 'Because of the adverse findings by the Tribunal member of the appellant's credit and the falsity of his documents in the first decision, the Court is satisfied that a fair minded and informed person might reasonably apprehend that the Tribunal member would not bring an impartial mind to bear in making [the] second decision.' His Honour earlier stated the relevant principles at [25] - [26] as follows: '25. There is no obligation on a Tribunal member to maintain a neutral state of mind during the entire course of a review of a delegate's decision. However it is critical that the Tribunal does not close its mind to any additional material that might possibly prove probative … If the decision maker's mind is closed, 'no hearing really takes place'; see Kanda v Government of Malaya [1962] AC 322 at 337 per Lord Denning MR. Because of the inquisitorial nature of Tribunal proceedings, the threshold for a finding of apprehended bias is necessarily higher than it is in curial proceedings …, but it is sufficient if, the parties or the public 'might entertain a reasonable apprehension' [of bias], … The accepted standard of proof for such finding is one of 'real possibility' … 26. Apprehension of bias is fundamentally contrary to the efficient and effective administration of justice, and if found to exist constitutes procedural unfairness. A breach of the obligation to provide procedural fairness constitutes jurisdictional error for the purposes of s 75(v) of the Constitution; see SAAP v Minister for Immigration and Multicultural and Indigenous affairs (2005) 79 ALJR 1009 at 1027 per McHugh J at [83]. The Tribunal cannot fulfil its statutory function where apprehension of bias exists, since a decision attended by jurisdictional error is no decision at all; see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.' 27 Section 424A of the Migration Act 1958 (Cth) relevantly provided: '424A(1) … the Tribunal must: (a) give to the applicant … particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review …; and (c) invite the applicant to comment on … it.' 28 It is apparent from the manner in which s 424A(1) has been expressed that the legislature contemplated that a Tribunal member would maintain an open mind about the question of whether or not the Minister's delegate's decision should be affirmed or not until at least an opportunity had been afforded to the applicant to comment on the relevant information. It does not seem to me that in this case the Tribunal member maintained such an open mind, rather the Tribunal member appears to have reached conclusions in relation to important matters before the letter of 2 November 2006 was sent. 29 I note that in the reasons for affirming the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa in this case the Tribunal member made findings which accorded with what had been stated as matters of conclusion in the 2 November 2006 letter. I will not take time to repeat the entirety of her reasons but they included: 'In this case, the Tribunal is not satisfied that the applicant is or ever was a Falun Gong practitioner. While the applicant claims to have commenced the practice of Falun Gong in 1998, she displayed little knowledge or understanding of its philosophy beyond the broadest concepts of "truth" and "kindness". …Despite her claim that she practices (sic) Falun Gong every day at home, the applicant could not accurately describe the exercises …' 30 The rest of the appellant's case was addressed by the Tribunal member as one akin to falling dominoes. She proceeded to say: '… the Tribunal finds that she is not a Falun Gong practitioner. It follows that the Tribunal does not accept that the applicant has suffered serious harm from the Chinese authorities in connection with Falun Gong in the past. …' 31 Other aspects of the appellant's case were decided by the Tribunal member against her, as consequences of the primary finding that she was not a Falun Gong practitioner. 32 The Tribunal ultimately concluded that it was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Refugees Convention. 33 I am of the opinion that the appellant was denied natural justice in that the Tribunal member did not, when she proceeded to consider the application for review, have an open mind on the matters requiring her consideration. If there was not actual bias, there was certainly an apprehension of bias. In the circumstances I am of the opinion that the appeal should be allowed and that the matter should be remitted for reconsideration by the Tribunal. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.