SZKTI v Minister for Immigration and Citizenship

TRIBUNAL'S DECISION 30 The tribunal did not accept that the appellant was in fact involved in the Local Church or any other Christian denomination in China. It outlined four reasons for this finding and elaborated on those. It then said that it found that the appellant's documentary and witness evidence shed little light on his claimed Christian practice in China, continuing: "As noted in the Tribunal's letter of 11 April 2007, Mr Cheah's and [the other elder's] written and oral advice to the Tribunal revealed only a superficial knowledge of the [appellant's] profile in China, indicating an 'understanding' that he had been a Christian there. The absence of any reference to the [appellant's] activities in China, let alone his claimed past harm and future concerns, amounts to weak support for the [appellant's] claims. The [appellant] commented that he did not wish the church to view him as a person who was using them to advance his refugee application. This contrasts markedly with the [appellant's] reliance on the church in China, for financial, logistic and other assistance, in circumstances where the church itself faces considerable risks." (emphasis added) 31 The tribunal said that whatever the reason for the Local Church in Sydney knowing very little about the appellant, it found that that provided scant support for his claim to have been an active Christian in China. It then said that the petition signed by members of the Local Church in Sydney contained only names and mobile telephone numbers, but accepted that it was prepared by persons who considered themselves to be members of the church. It then said that the letter stated only that the appellant was a devoted Christian but gave no insight as to his activities in China and whether he did or did not arrive at the Local Church in Sydney as a person who was already a committed Christian. It placed no weight on the petition as evidence of the appellant's Christian involvement in China. It then said that it had examined the photocopied letter ("Testimony") of 15 April 2007 and accepted that it had been authored on that date and sent in the envelope forwarded to the tribunal. Then, somewhat incongruously having regard to the tribunal's insistence that the appellant provide further material, it said that the timing of the letter "… strongly suggests that the [appellant] requested and arranged for it immediately upon receipt of its 11 April 2007 letter". It said that regardless of whether the letter was arranged at very short notice or had been the subject of an earlier request from the appellant, the four authors were contactable and sufficiently confident to meet together and put in writing the nature of their illegal support for the appellant. 32 The tribunal then said that although the appellant had provided it with the envelope in which the letter had been sent from China, thus addressing its postal history, "there remain questions as to the identity of the authors and the circumstances in which the letter was written". The tribunal said it was unable to place any weight on the letter as evidence of the appellant's Christian practice in China or his alleged treatment as a Christian. (We note that the letter contained what were apparently telephone numbers for each of the four authors of the letter). 33 The tribunal found that the appellant was not a practising Christian at the time of his departure from China. It then set out further reasons to support that finding. The tribunal then turned to the appellant's conduct in Australia. It accepted, on the basis of the appellant's oral evidence, the signed petition, the letter from the two elders, and Mr Cheah's telephone advice that the appellant attended Local Church groups in Sydney. However, the tribunal commented that the appellant's oral evidence as to the nature of those activities was limited. He had named several locations of the Local Church's gathering places which the tribunal regarded as generalised descriptions. The tribunal made allowances for the appellant's difficulties in familiarising himself with English place names. The tribunal then said that it was unsettled by the appellant's evident focus on helping to set up meetings and preparing the food rather than on the substance of key meetings such as preparations for Christmas. It noted that his description of communal activities was very general and then said: "This, together with the content and tenor of the superficial comments from Mr Cheah (put to the [appellant] in post-hearing correspondence) and the non-specific nature of the petition, suggests that the [appellant's] exposure to Christianity is recent, superficial and limited." (emphasis added) 34 The tribunal referred to all its findings and in particular to the findings that the appellant was not a Christian in China and that his involvement in the Local Church in Sydney was limited, and said that it was not satisfied that his activities in Australia were conducted otherwise than for the purpose of strengthening his claim to be a refugee. It applied s 91R(3) of the Act and disregarded those activities. The tribunal then found that the appellant did not have a well founded fear of persecution and affirmed the delegate's refusal to grant a protection visa.

THE ISSUES 35 From the above account it can be seen that the tribunal's telephone conversation with Mr Cheah was part of the reason for its rejection of the appellant's claim for a protection visa. The critical issue is whether the tribunal could simply telephone Mr Cheah and ask him questions without having followed the procedures in ss 424(2), (3) and 424B of the Act. The appellant also argued that the matters of concern to the tribunal arising from its mobile phone call with Mr Cheah were new "issues arising in relation to the decision under review" and s 425(1) required him to be invited to a further hearing to give evidence and present arguments on those new issues.

COULD THE TRIBUNAL SIMPLY TELEPHONE MR CHEAH WITHOUT COMPLYING WITH S 424(2) AND (3)? 36 The Minister argued that there was a general power for the tribunal to "get any information that it considers relevant" in s 424(1). He contended that the tribunal could seek information from a person such as Mr Cheah either directly, as it did, or using, as an alternative, the method provided under s 424(2). He relied on the introductory words of s 424(2) as showing that the mechanism which that provision afforded was additional to any method available to the tribunal under s 424(1). 37 The tribunal can obtain information from a number of sources in addition to evidence or anything else given to it at a hearing under s 425(1). First (without seeking to be exhaustive), there are those sources of information referred to in s 424A(3), namely what is commonly referred to as "country information", namely information not specifically about the applicant for review or another person but about a class of persons of which the applicant for review or the other person was a member. Secondly, information which the applicant gave to the tribunal for the purpose of the application (such as material included with the application for review) information which the tribunal obtains from its own investigations, such as reading in libraries or searching the internet. Thirdly, there may be cases where people provide information to the tribunal in an unsolicited manner. 38 In Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 217 [14]-[16] Whitlam, Tamberlin and Sackville JJ observed that s 424(1) appeared to be directed to enabling the tribunal to take the initiative in obtaining material it considers to be relevant but the section did not limit the tribunal from receiving information provided to it by others, such as an unsolicited letter: see e.g. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88. 39 In Abedi v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 186 at 192 [20]-[21] Merkel J held that s 424(1) dealt with information which the tribunal obtained on its own initiative, and did not extend to information given by an applicant to the tribunal for the purposes of the application. It is not necessary to decide whether, when the tribunal obtains country information or other information provided by the applicant for review, it "gets that information" within the meaning of s 424(1). When s 424(2) applies, the Minister accepted that the tribunal was then bound to follow the procedure in ss 424(3) and 424B. 40 In our opinion, the tribunal's telephone call to Mr Cheah on 4 April 2007 amounted to an invitation to him to give additional information to the tribunal. The tribunal's decision record and second letter (sent pursuant to s 424A)recited what it said it had obtained during the telephone conversation with Mr Cheah. That showed that he did provide information additional to that contained in his letter of 5 February 2007. It follows that s 424(2) was engaged when the tribunal decided to seek that information from Mr Cheah. On this point, the Minister argued that s 424(1) authorised the tribunal to act in this way, and that s 424(2) was an alternative method by which the tribunal may proceed, which it did not need to follow. 41 In our opinion that argument should be rejected. The tribunal invited Mr Cheah to provide new information additional to that in his letter. In speaking to Mr Cheah on the telephone the tribunal was not acting under its powers under s 427(3)(a), since it did not summons Mr Cheah to give evidence before it. In other words Mr Cheah was being invited to volunteer information, as opposed to being summonsed, under compulsory process, to give evidence. That does not mean that when the tribunal received the information from Mr Cheah it could not treat it as evidence or material before it. But in responding to the tribunal, Mr Cheah was responding to its invitation to give additional information to that in his letter of 5 February 2007, not complying with a legally binding requirement to do so. 42 The appellant argued that s 424(2) was a specific provision dealing with an invitation to a person to give additional information which attracted the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 where Gavan Duffy CJ and Dixon J said (see also David Grant & Co Pty Limited v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed): "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power." 43 In our opinion in its natural and ordinary meaning s 424(2) provides a means by which a person may be "invited" to give additional information to the tribunal, that is, information which that person has not already provided to the tribunal or which the tribunal has not obtained in another way, such as pursuant to the use of its powers under s 427(3) to summons a person to give evidence. The introductory words to s 424(2), namely "without limiting subsection (1)", identify one of the means available under s 424(1) which the tribunal may employ to get information, but then s 424(2) prescribes the mode and limitations governing how it may invite a person to give it additional information. The Parliament provided a code in ss 424, 424A, 424B and 424C which made extensive provision for the tribunal to obtain information including by means of an invitation to a person to provide it. Those provisions specified the means by which the information was to be sought, and the consequences for its non-provision. We are of opinion that the Parliament did not authorise the tribunal to get additional information from a person pursuant to its general power under s 424(1) without complying with the code of procedure set out in ss 424(2) and (3). 44 Moreover, s 422B(1) made the intention of the Parliament manifest that the nature and extent of the natural justice hearing rule, where, relevantly, a person was invited to give information, was exhaustively set out in Div 4 of Pt 7 of the Act. There is nothing in the text or structure of Div 4 of Pt 7 which supports a construction permitting the tribunal to invite a person to give it additional information without complying with the requirements of ss 424(3) and 424B. In ASIC v DB Management Pty Limited (2000) 199 CLR 321 at 338 [34]-[35] Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said: " [34] In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said: "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." [35] It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning." 45 In our opinion, the Minister failed to provide any plausible alternative legal meaning to ss 424(1) and (2) which allowed the tribunal to act as it did when inviting Mr Cheah to provide additional information without complying with ss 424(3) and 424B. Here, the tribunal's obligations under s 424(3) were enlivened. Since those obligations were not complied with, the tribunal failed to follow the procedure specified in the Act for the provision by a person invited to give additional information of that information and committed a jurisdictional error. 46 There are important consequences which might flow from such a failure, illustrated by the facts of the present case. First, there is no clear material to identify what Mr Cheah was asked by or told the tribunal. One reason for the requirement laid down in s 424B is that where the information is to be provided in writing, there is a record of a writing. If it is to be provided at an interview, the interview is to occur on a particular occasion at a particular place and time. The tribunal is likely to make a record in that event, although it does not have to do so. But, more significantly, the person from whom the information is being sought will be given a fair opportunity to prepare himself or herself to provide that information with the consideration and degree of accuracy that a fair hearing of the application for review application demands. After all, one of the tribunal's most important functions is to consider whether Australia owes protection obligations to an applicant for review. An erroneous finding could have very significant consequences for that person, who may be returned to a country in which he or she is actually persecuted or put to death, as he or she may claim to fear (cf: Reg v Home Secretary; Ex parte Bugdaycay [1987] AC 514 at 531F-G per Lord Bridge of Harwich). 47 An impromptu telephone call received by a person who can provide the tribunal with information could be regarded by the recipient with suspicion or reserve. Unless he or she is assured he or she is speaking to the tribunal itself, as opposed to an unidentified person claiming to be a member of the tribunal (or an officer authorised by it to collect information), the recipient of the call may not give a full and frank or even a considered and accurate response. Moreover, in the present case, Mr Cheah was contacted in a telephone call two months after he wrote his letter. Whether he accurately recalled to mind in the telephone conversation all the details he knew of the appellant, in circumstances where he may not have been fully prepared to discuss the appellant's circumstances or to give a fair account of his knowledge in respect of the information being sought, is not known. That is one reason why Div 4 of Pt 7 of the Act provides a detailed procedure for seeking such information which a person is invited to provide. 48 The tribunal drew an adverse inference against the appellant based on what it said was Mr Cheah's "superficial knowledge" of his profile in China and his "understanding" that the appellant had been a Christian there. In one sense, all Mr Cheah could say with accuracy is that he understood that the appellant was a Christian in China because Mr Cheah had not been in China observing the appellant. The tribunal's implied criticism of the appellant because of Mr Cheah's "understanding" is odd but may have been open to it had it undertaken a fair procedure. It would be open to a person in Mr Cheah's position to say, when telephoned some two months after he had written a letter about a person, who may have been one of many with whom Mr Cheah had dealings, that he had an "understanding" about the person. Indeed, that could be a natural response in the circumstances of being asked the question without prior warning. He could have been caught on the run, he may not have been able to focus his mind fully on what was happening, he may have been suspicious about who was asking him for the information, or he may not have been sure that it was appropriate that he provide it in the circumstances in which it was sought. That is why the Act provides a procedure for seeking that information from a person in Mr Cheah's position. 49 The formality of compliance with ss 424(3) and 424B, ensures that the information that the tribunal receives from such a person is given by him or her in the knowledge that he or she has been formally invited to give it. One reason why a person may want such a formal invitation is that he or she may have an adverse comment to make about the applicant for review and wish to have the protection of an occasion of a formal statutory enquiry, as opposed to a casual telephone call. 50 While the tribunal was at liberty to choose among the methods provided in Div 4 of Pt 7 by which it might obtain the information sought from Mr Cheah, it was not at liberty simply to telephone him, without warning, and ask him questions. In Applicant VEAL (2006)225 CLR at 96 [16], Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said that the principles of natural justice, or procedural fairness, were not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise. They said that because the principles of procedural fairness focus upon procedures, rather than outcomes, it was evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They said that they are to be applied to the processes by which the decision would be reached. 51 After judgment was reserved, the Minister drew our attention to the decision of Middleton J given the following day: SZGBI v Minister for Immigration and Citizenship [2008] FCA 599. He held that s 424(2) did not apply where the tribunal had acted on a request by the applicants for review that it obtain oral evidence from two persons named by them as persons from whom they wished it to obtain evidence under s 426(2). In those circumstances we do not find that decision of assistance. 52 The Minister also argued that there was a potential for tribunal proceedings to become protracted unduly if the steps set out in ss 424(2) and (3) needed to be used whenever a person was asked for any information. He argued that it was possible that a result of information provided by the applicant for review or another person in response to enquiries made or to invitations to the applicant to comment under s 424A arose, the tribunal could be exposed to a continuing cycle of obtaining information under ss 424(2) and (3) and 424B. 53 In our opinion, if the tribunal requires additional information to be provided by a person it must follow the procedures that the Parliament has laid down to obtain that information. One mechanism that the tribunal can use is to invite the applicant or the person to a hearing and obtain evidence from them on oath. It can then invite the applicant to provide further information. The procedure is, after all, inquisitorial. It is not an unusual feature of inquisitorial procedures, that proper enquiry takes time and care. The tribunal will naturally seek to contain the extent of its enquiries, consistently with its performance of its duties having regard to s 420. 54 The failure of the tribunal to follow, with Mr Cheah, the procedures in ss 424(2), (3) and 424B was a jurisdictional error.

SHOULD THE TRIBUNAL HAVE INVITED THE APPELLANT TO A FURTHER HEARING UNDER S 425 AFTER ITS TELEPHONE CONVERSATION WITH MR CHEAH 55 The appellant argued that although the tribunal had complied with s 424A in relation to the information provided by Mr Cheah by sending its letter of 11 April 2007, offering an invitation to comment, it was still obliged by s 425(1) to issue a further invitation to the appellant to appear before it to give evidence and present arguments. He contended that this was because the s 424A letter raised additional issues concerning the assertion that Mr Cheah's knowledge of the appellant's profile in China was superficial and that he only had "an understanding" about his activities as a Christian there. He relied on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165 [42], where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said that the applicant for review was not put on notice that two new issues arose for the tribunal in relation to the decision under review, being how the SZBEL's ship's captain came to know of his interest in Christianity and his account of the captain's reaction to that knowledge. 56 The appellant argued that until the tribunal wrote its letter pursuant to s 424A on 11 April 2007 there was no issue in the review concerning Mr Cheah's communications with the tribunal concerning his knowledge of the appellant, since those were not issues at the time the appellant gave evidence before the tribunal, it had not challenged him about those matters or raised them as live issues at the hearing. The appellant had invited the tribunal to contact Mr Cheah and provided the tribunal with information from Mr Cheah. But once the tribunal took the further step of speaking with Mr Cheah and forming a view that there was an issue, adverse to the appellant, relating to what it described as the "content and tenor" of the superficial contents from Mr Cheah, there is some force in the appellant's argument that s 425(1) was again engaged. 57 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 321 [77] McHugh J said that it was not to the point that in some cases it might seem unnecessary to give an applicant for review written particulars of adverse information (for example, if the applicant were present when the tribunal received the adverse information as evidence from another person and the tribunal there and then invited the applicant orally to comment on it). He said that if the requirement to give written particulars were mandatory then failure to comply meant that the tribunal had not discharged its statutory function. Hayne J (with whom Kirby J agreed on this issue: see SAAP 228 CLR at 345-346 [173]) said that the imperative language of s 424A required the tribunal to provide the particulars referred to in writing and a failure to do so was a breach of the requirements of procedural fairness (see 228 CLR at 347 [183], 353-355 [204]-[209]). 58 In SZILQ v Minister for Immigration and Citizenship (2007) 163 FCR 304 at 315 [31]-[32] Buchanan J held that the requirements of s 425(1) were not fully met where a new issue emerged in a letter sent to the applicant for review under s 424A asking for comment after he or she had given evidence to the tribunal at a hearing under s 425(1). 59 In our opinion it is not necessary to decide this question since the appeal succeeds for the reasons we have given. 60 Finally, we should record our appreciation to counsel for the appellant who appeared pursuant to an order made under Order 80 (see SZKTI v Minister for Immigration and Citizenship [2008] FCA 328). I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Goldberg and Rares.

Associate: Dated: 28 May 2008 Counsel for the Appellant: Mr R. Lancaster and Mr C. Cassimatis