SZKMX v Minister for Immigration and Citizenship

THE TRIBUNAL'S DECISION 6 Before the Tribunal, the appellant made no new claims. He had already produced to the previously constituted Tribunal: his passport, a document described as a 'Certificate of Release' ('the Certificate') from a 'rehabilitation through labour' facility and two handwritten letters from his wife ('the Letters'), one addressed to the Department of Immigration and the other addressed to the appellant. According to the appellant, his wife was continuing to suffer harm in China and he would be unable to find employment due to his personal history if he were to return. When he was later asked by the Tribunal why he did not produce the Certificate earlier than he did, he said that he had forgotten about it. 7 The appellant told the Tribunal that he had obtained his passport in October 2004. He said he had some difficulty obtaining a passport at the time and he eventually asked a friend to get it for him. He said he had been living at the same address in Kaifeng City for more than 20 years before he came to Australia and that his wife and daughter were still living at that address. He said that his wife had only been able to obtain casual work after the factory was closed down, because of his protests. He maintained that claim when questioned by the Tribunal, despite indications in his wife's letters that appeared to contradict it. He said further that he had only been able to obtain occasional casual work after the factory was closed down because the police would call on him every two or three days. His last job was in October/November 2005. 8 The Tribunal asked the appellant whether he had any difficulties leaving China. He said he had had no difficulties leaving the country but he claimed he did have trouble obtaining a visa and had tried a lot of different countries. He said this was why he had not left China earlier. He said 'when he got his visa his friend told him to leave as soon as possible.' 9 The appellant claimed he had been arrested in 2003 over his protests against the factory closure and later released. He said that between 2004 and 2005 he was told by the police many times 'not to make trouble'. He claimed he was arrested again and detained from November 2005 and until March 2006 after a demonstration about the factory closure involving 1000 to 3000 people. He said he was sent by the 'PSB' to a labour camp in Keifeng City although there were no legal proceedings associated with his detention. When it was put to him that the Certificate showed that he had been ordered by the People's Court to undergo rehabilitation through labour and had been released on bail, he maintained that there were no court proceedings, that he had been sent there by the PSB, and that the Certificate was the document he was given on his release. 10 While the Tribunal accepted that the appellant had worked in a factory that had been closed down in 2003, the Tribunal did not accept any of the appellant's claims regarding persecution. In particular the Tribunal concluded that: '[it] does not accept that the applicant left his country and fears to return there because of harm he feared/fears from Chinese authorities/the PSB because of his involvement in demonstrations/protest in relation to the factory where he worked. It does not accept that he was arrested and/or detained at any time as he claims for the reasons that he claims or that he was/is of interest to the PSB as he claims. It does not accept that his friend 'disappeared' for the reasons he claims. It does not accept that his wife/child fear or have suffered/will suffer harm in his country because of their association with him. The Tribunal finds against the applicant in relation to these claims as it does not consider that he is a witness of truth.' 11 In reaching these conclusions the Tribunal relied upon a number of inconsistencies in the appellant's claims, including the following: a. the applicant's claim was that he had been persecuted by the Chinese authorities and was fearful of them - yet he had remained at the same address in China for more than 20 years, up until the time he left in 2006, and his wife and daughter remain at that address; b. the applicant's claim was that he had been detained by the Chinese authorities, had been persecuted by them and is of continuing interest to them - yet he was able to obtain a passport in October 2004 and leave the country using that passport without difficulty in 2006; c. the applicant's claim was that he had been detained in November 2005 by the PSB without any legal proceedings and sent to a labour camp - yet the Certificate showed he was ordered by the People's Court to undergo rehabilitation through labour and later released on bail. 12 The Tribunal did not find the Letters to be reliable evidence of the facts contained in them, on the basis that the appellant's wife was an interested and partial witness. It also concluded that the appellant's explanation that he had forgotten to refer to the Certificate in his original application for a protection visa was implausible. 13 The Tribunal therefore concluded that there was no plausible evidence before it to show that the appellant had suffered, or would suffer, Convention-related persecution in China and that the appellant was not a person to whom Australia owed protection obligations under the Convention.

THE FEDERAL MAGISTRATE'S DECISION 14 The appellant lodged an application for judicial review of the Tribunal's decision in the Federal Magistrates Court on 12 December 2007. In that application, he alleged that there was an error of law in the Tribunal's decision and that he had been denied natural justice. The accompanying particulars asserted that the Tribunal had not assessed the appellant's claims properly and fairly in breach of s 425 of the Migration Act 1958 (Cth) ('the Act'), that it could be apprehended to have displayed bias in dealing with his claims and that it had failed to comply with s 424A of the Act by not making him aware of the inconsistencies it relied upon in making its decision nor allowing him to comment on them. 15 The Federal Magistrate found that the allegations of bias were not supported by any evidence or any submissions, as they must be. Her Honour concluded that 'a fair reading of the Tribunal's decision does not disclose any prejudgment', or 'a lack of an honest or a genuine attempt to make a decision', nor did it suggest 'that the Tribunal approached its task other than with a mind open to persuasion'. 16 In relation to the alleged breach of s 425 of the Act, her Honour found that the Tribunal had considered all of the appellant's claims and all of the documents he had produced to it. She also found that the Tribunal had properly put its concerns about his evidence to the appellant. Her Honour determined that the various findings of fact made by the Tribunal were open to it on the evidence and concluded that the appellant was really seeking a merits review of the Tribunal's decision which was not permissible, citing Abebe v Commonwealth of Australia (1999) 197 CLR 510;[1999] HCA 14. 17 In relation to the alleged breach of s 424A of the Act, her Honour held that the inconsistencies in the appellant's account identified by the Tribunal arose from information submitted by him to the Tribunal for the purposes of review. As such, that information was excluded from the operation of s 424A(1), by s 424A(3)(b) of the Act. 18 The Federal Magistrate accordingly dismissed the appellant's application for review on the basis that no jurisdictional error had been demonstrated.

GROUNDS OF THE PRESENT APPEAL 19 The Notice of Appeal filed in this Court on 26 March 2008 alleges that the Federal Magistrate erred in law and was wrong in her finding that the Tribunal acted properly in making its findings. Seven paragraphs of 'Particulars' are then provided. The first six particulars go to the Tribunal's treatment of the Certificate and the Letters submitted by the appellant. The seventh particular alleges that the Tribunal failed to comply with s 424A of the Act by not providing information to the appellant which it used as the reason for making its decision. 20 In relation to the Certificate the appellant says in these particulars that he did not produce it at the time he lodged his application for a protection visa because it was impossible for him to bring it out of China through customs and it was dangerous for his wife to mail it to him because the Chinese authorities would be monitoring the mail system. 21 In relation to the Tribunal's rejection of the Letters, the particulars seek to quibble with the Tribunal's conclusion that the appellant's wife was a partial witness who was interested in the outcome.

THE CONTENTIONS 22 At the hearing of this appeal the appellant appeared in person and was unrepresented. He was assisted by an interpreter. Ms Sirtes appeared for the first respondent. 23 The appellant's submissions were largely a repetition of the material in his Notice of Appeal. He did provide some additional detail in relation to the alleged breach of s 424A; he submitted that the information that the Tribunal should have put to him under that section was its reason for rejecting the Certificate and the Letters. 24 Ms Sirtes relied upon the written submissions she had earlier filed and made some oral submissions. Among other things, she submitted that the Tribunal's rejection of the appellant's documents involved factual findings in relation to the probative value of the documents, and those factual findings were clearly open on the evidence. Ms Sirtes submitted that there was no contradiction inherent in the Tribunal relying upon the Certificate and later concluding it was not reliable evidence of its contents. In the alternative, she submitted that if this did amount to an error on the part of the Tribunal, it was only an error of fact and did not amount to jurisdictional error. 25 In response to the alleged breach of s 424A, Ms Sirtes submitted that insofar as the appellant may be claiming that the Certificate and the Letters were information that the Tribunal should have put to him, since they were all produced by the appellant they fall within the exception contained in s 424A(3)(b) of the Act. Further, insofar as the appellant alleged that the Tribunal's reason for rejecting those documents was information covered by the section, Ms Sirtes relied upon the High Court's decision in SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26 at [18] to the effect that the Tribunal's thought processes are not information for the purposes of that section.

CONSIDERATION 26 The appellant's complaints about the Federal Magistrate's findings in relation to the Tribunal's decision fall into two categories: 1. The Tribunal's rejection of the documents he had submitted to it; and 2. The Tribunal's failure to put certain information to him, which he said was in breach of s 424A. 27 The first category involves two sets of documents: the Certificate and the Letters. 28 The copy of the original Certificate available to the Court appears to be a printed form. At the head of it, below some Chinese characters in bold print, there appears two numbers, the second preceded and proceeded by Chinese characters as follows: (2009) ** 297 *. In the body of this copy there are what appear to be a number of official stamps (or parts of stamps). The translated version of the Certificate reads as follows: 'This is to certify that [the appellant's name is stated], male, born on the 29th of March 1963, home address on his Household Registration: [the appellant's home address in China is stated], was ordered by a People's Court on 15th of November 2005 to undergo rehabilitation through labor [sic] for disrupting the public order and is now released on bail. 17 March 2006. Note: This page is kept by the released person.' 29 On its face the Certificate provides evidence that the appellant was detained in China by an Order of the People's Court on 15 November 2005 and was released on bail on 17 March 2006. While the Certificate does not expressly say he was detained, this can be inferred from the fact that the Order was made on 15 November 2005 and he was not released on bail until 17 March 2006. Further, the Certificate provides evidence that the appellant was detained for 'disrupting public order' and required to undergo 'rehabilitation through labour' during his detention. 30 In its reasons, the Tribunal rejected the Certificate stating that: 'The Tribunal finds that the document described as the 'Certificate of Release' is not reliable evidence of the facts in it'. This conclusion appears in the last sentence of one of the concluding paragraphs of the 'Findings and Reasons' section of the Tribunal's reasons. Nowhere in that paragraph does the Tribunal state what evidence it relied upon to reach this conclusion, nor what reasoning process it employed. 31 However, the Tribunal does refer to the Certificate at a number of points earlier in that paragraph. In the sentence immediately preceding the sentence where it rejects the Certificate (above) the Tribunal says that it found the appellant's explanation that he had forgotten the Certificate, or not realised its importance, until his first Tribunal hearing, was implausible. Before me, the appellant changed this explanation (see [20] above) and claimed instead that his late production of the Certificate arose from the difficulties he had encountered in either attempting to bring the Certificate with him, or having his wife send it to him from China. 32 This change of explanation raises obvious doubts about the plausibility of both explanations and may also raise doubts about the appellant's credibility more generally. However, even if one gives weight to those doubts, it is difficult to see how they provide any logical or rational reason for rejecting the reliability of the Certificate itself. 33 More importantly, the Tribunal itself does not suggest any link between these two conclusions in its reasons. Specifically, the Tribunal does not suggest that it could somehow infer from the late production of the Certificate that it was, for example, a recent invention. Of course, such a conclusion would go much further than the finding that the Certificate was 'unreliable'. Certainly, the Tribunal did not anywhere in its reasons go close to stating that it believed the Certificate was an invention or a forgery. 34 To the contrary, the Tribunal appeared to accept the facts stated in the Certificate and seemed to reject as implausible the explanation the appellant gave for the apparent inconsistency in his claims. This occurs earlier in the paragraph containing the sentence where the Tribunal rejects the Certificate as reliable. There the Tribunal states: 'In the Tribunal's view the certificate of release document that the applicant gave to the Tribunal in support of his claim that he was detained from November 2005 until March 2006 is inconsistent with his claims that he was detained without legal/Court procedures; the document states that he was ordered by the People's Court to undergo rehabilitation through labour and also that he was released on bail. The Tribunal does not consider that his explanation for this is plausible, namely that the PSB sent him to a labour camp and in China when a person is released from such camp he gets this sort of certificate.' 35 As noted, Ms Sirtes submitted on behalf of the Minister that if the Tribunal had committed any error in reaching its conclusions in relation to the Certificate, it was only an error of fact and did not amount to jurisdictional error. There is little doubt that a mere error of fact does not provide a basis for judicial review. To found review, the error must relate to a jurisdictional fact or involve a substantive or procedural error of law: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 - 352, and NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [52]-[53]. 36 In SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231, the Full Court stated, at [19]: 'If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error ...'; and at [30] the Full Court determined that a jurisdictional error had been made. 37 In SZDTZ v Minister for Immigration & Citizenship [2007] FCA 1824, Greenwood J reviewed many of the authorities on the distinction between an error of fact or law and jurisdictional error and concluded as follows, at [32]: 'A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.' 38 More recently, in SZDFZ v Minister for Immigration and Citizenship (2008) 100 ALD 575;[2008] FCA 390 at [43], Flick J made some observations on the circumstances when a Court should intervene in relation to errors of the kind identified above, as follows: 'Although the circumstances in which such errors as that which the Tribunal committed in the present case may be rare, when they do occur this Court should intervene unless it is satisfied that the error was non-prejudicial. Such a finding should not be made in the present appeal. The reconstituted Tribunal was clearly unimpressed with the Appellant's credibility - but it remains unknown which of a series of particular findings ultimately persuaded it that the Appellant's evidence was not to be accepted. The finding that the Appellant 'was asked' as to the when the national conference was to be held, when he clearly was not asked, could not be regarded as irrelevant to the ultimate adverse findings as to credit.' 39 In a different context, but to similar effect, the High Court observed in Stead v State Government Insurance Commission(1986) 161 CLR 141 at 145that an appellate court should be cautious about reaching a conclusion that compliance with the requirements of natural justice could have made no difference to the outcome in a case, particularly where the acceptance or rejection of a witness's evidence arises. 40 Although the cases I have referred to above suggest two are not required, in my view, both of the grounds for jurisdictional error identified above existed in this case. That is: there was no evidence to support the Tribunal's conclusion or inference that the Certificate was unreliable and there is nothing in the Tribunal's reasons that would provide a proper basis for coming to that conclusion or drawing that inference. 41 The question then arises whether the Tribunal's conclusion that the Certificate was unreliable was a critical step in its ultimate conclusion, or alternatively whether it can be said that it was non-prejudicial, or would make no difference, to the ultimate outcome of the matter. 42 As I have observed above, on its face the Certificate provides evidence that the appellant was detained in China by an order of the People's Court on 15 November 2005 and was released on bail on 17 March 2006. If this evidence was not erroneously rejected as unreliable then it would have been impossible for the Tribunal, based upon the facts disclosed in its reasons, to have logically and rationally made the following conclusions in relation to the appellant's claims (as it did): a. It did not accept that he was arrested and/or detained at any time as he claims, for the reasons he claims; b. It did not accept '… that the applicant was detained/imprisoned in his country at any time as he claims'; c. The appellant had invented his claims about being detained in China and being released on bail to assist his application for a protection visa. 43 The appellant's claims that he had been detained in November 2005 and released on bail in March 2006 were a crucial part of his ultimate claim that he had a well- founded fear of persecution in China within the meaning of the Convention. The Tribunal stated twice in the concluding paragraphs of its reasons that it had regard to, or considered, all of the evidence in reaching the ultimate conclusion that the appellant did not satisfy the criteria for a protection visa. In doing so it must necessarily have had regard to, or considered, conclusions (discussed above) that would not have been open to it if the Certificate had not been rejected as unreliable. In my view, therefore, the Tribunal's erroneous conclusion that the Certificate was unreliable was a critical step in its ultimate decision to reject the appellant's application for a protection visa. 44 On the alternative approach, given that the Tribunal's conclusion that the Certificate was unreliable ultimately allowed it to reject significant parts of the appellant's evidence and claims, I could not be satisfied the Tribunal's erroneous conclusion about the Certificate was non-prejudicial, or would make no difference, to its ultimate outcome. In reaching this conclusion I have considered whether some of the Tribunal's conclusions about the appellant's credibility could have stood independently of the findings I have identified above, and therefore allowed the Tribunal to reach the same decision but untainted by these matters. However, I have concluded that this course is not open. This is so because, first, the Tribunal did not make separate and independent findings on credibility on some or all of the different aspects of the appellant's claims, but instead relied upon a series of alleged inconsistencies to support its bundled conclusion that the appellant was not a witness of truth. Secondly, the Tribunal stated that its ultimate conclusion was founded upon '[h]aving considered the evidence as a whole….'. 45 Finally, since an appeal to this Court is primarily directed to redressing appellable error on the part of a Federal Magistrate, I will identify where the Federal Magistrate fell into error. In my respectful opinion the Federal Magistrate, in dealing with the issue of the Certificate at [35] of her reasons, failed to address the critical part of the Tribunal's reasons - where it drew its erroneous conclusions about the Certificate. Her Honour therefore failed to detect the jurisdictional error involved in the Tribunal's conclusion. 46 In view of the conclusion I have reached about the Certificate and the orders I propose to make, it is not necessary for me to consider other aspects of the appellant's grounds of appeal, either as to the Tribunal's treatment of the Letters, or the alleged breach of s 424A.

ORDERS 47 This ground of appeal has been made out and I therefore order that this matter should be remitted to the second respondent to be determined according to law. 48 I will hear the parties on the question of costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 6 June 2008 Counsel for the Appellant: In person

Solicitor for the First Respondent: DLA Phillips Fox