SZLDC v Minister for Immigration and Citizenship

The requirements for the grant of a protection visa 13 Under s 45 of the Act, a person who is not an Australian citizen who wants a visa must apply for a visa of a particular class. An application for a visa is a valid application if it complies with the requirements of s 46 of the Act. Section 47(1) of the Act requires the Minister to consider valid applications for visas. 14 Section 65 of the Act makes provision for the grant or refusal of visas. It relevantly provided: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.' 15 In respect of protection visas, s36(2) of the Act relevantly provided: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; … …' 16 The references to the 'Refugees Convention' and to the 'Refugees Protocol' are references to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (hereinafter collectively referred to as 'the Convention'). 17 Whether under s 36(2) Australia has protection obligations to a particular person depends upon whether that person satisfies the definition of a refugee in Article 1A of the Convention, in the context of other relevant Articles (per Gummow A-CJ, Callinan, Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 ('QAAH') at [37]). 18 In Article 1A(2) of the Convention, the term 'refugee' applies to any person who: '…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …' 19 By virtue of s 91R(1) of the Act, the requirements of Article 1A(2) in respect of persecution are not met unless the persecution involves serious harm to the person and the persecution involves systematic and discriminatory conduct. Instances of 'serious harm' for the purposes of section 91R are to be found in section 91R(2).

The role of the Refugee Review Tribunal 20 Under s 411(1)(c) of the Act, a decision to refuse to grant a protection visa is an RRT-reviewable decision. Section 412 of the Act provides for the making of applications for review of RRT-reviewable decisions to the second respondent, the Tribunal. Section 414(1) of the Act requires the Tribunal to review valid applications made under s 412 for the review of RRT-reviewable decisions. By s 415 of the Act, the Tribunal is empowered to exercise all the powers and discretions that were conferred, relevantly, on a delegate of the Minister who has made a decision to refuse to grant a protection visa under s 65(1)(b) of the Act. The powers of the Tribunal included a power to affirm the relevant decision (see s 415(2)(a) of the Act) and a power to set it aside and substitute a new decision (see s 415(2)(d) of the Act). 21 Proceedings before the Tribunal are not adversarial but inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for a review before the Tribunal, it is for the applicant to advance whatever evidence or argument she wishes to advance, and for the Tribunal to decide whether her claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]-[58]; see also QAAH at [40]). 22 The Act does not require that the Tribunal actively assist an applicant in putting her case, nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]). 23 In relation to matters of procedural fairness at a Tribunal hearing Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ('SZBEL') at [47] - [48]: '47 … It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers maybe important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 48 … as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry, "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.' (Footnotes omitted) 24 In the context of the present case particular emphasis should be given to that part of SZBEL at [47] where their Honours said that where there are specific aspects of an applicant's account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must, at least, ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 25 Counsel for the respondent Minister rightly points out that the Court does not know what was said at the Tribunal hearing in this case which occupied approximately one hour on 21 March 2000. Neither a transcript of the Tribunal hearing, nor the relevant Tribunal tapes, were tendered in evidence when the matter was before Federal Magistrate Orchiston on 26 February 2008. 26 However, as Gleeson CJ observed in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ('Yusuf') at [10]: '… By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction …' 27 In Yusuf consideration was given to s 430 of the Act, which relevantly provided: '430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based.' 28 As the High Court has observed, the findings on material questions of fact which must be set out are findings on those questions of fact considered by the relevant Tribunal member to be material and not those which a Court entertaining an application for review may consider were material. In the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf their Honours reached a similar conclusion to that expressed by Gleeson CJ and referred to above. At [69] their Honours said: '… Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. …' (Footnotes omitted) 29 In the present case, a pivotal finding by the Tribunal was the finding that the appellant obtained the passport on which she travelled to Australia in July 1999 before April 1996 when the passport was used by the holder thereof to travel to Japan. The reason why this finding was pivotal was because the appellant's case, as presented to the Tribunal, was that in October 1995 she had, together with several good friends, set up a small underground printing factory in China which began to publish a monthly magazine entitled 'True Love of the God'. The printing factory was said to have been discovered by the Public Security Bureau in China with the result that the appellant was arrested by the PSB in February 1996 and detained for investigation for nearly one year during which she was subjected to mental and physical persecution and interrogated many times and even tortured by what she described as 'those cruel policemen'. Her claim was that she was released in January 1997. 30 To put these matters into context it is appropriate to observe, as did the Tribunal, that the appellant claimed fear of persecution in the People's Republic of China for the Convention related reason of 'religion'. She claimed to be a member of what the Tribunal described as 'a banned Christian sect known as "the Shouters" or "Hu Han Pai"'. In both her application for a protection visa and also in her Application for Review in the Refugee Review Tribunal the appellant disclosed her claims in respect of her beliefs and her religious observance. 31 Shortly, she claimed to have been born in a religious family. She claimed that both of her parents were 'pious Christians, who belonged to Shouting Denomination ("Hu Han Pai")'. She claimed that her parents had been cruelly persecuted owing to their religious beliefs. She claimed that she had suffered various discriminations and persecution since her childhood. She claimed that she could not give up her religious beliefs and activities. She observed that the Shouting Denomination was regarded as an illegal religious organisation by the Chinese government and thus its activities were very dangerous. It may be observed that the Tribunal accepted that religious affairs in the People's Republic of China were subject to substantial government control and regulation. 32 The appellant claimed that following her release from detention, she was still not allowed to attend public churches and engage in religious activities openly. She claimed that in October 1998, her family church had been banned by the local government, and that she was thereafter interrogated and threatened by policemen many times. She claimed to be a pious Christian herself, and says that she organised an underground church from February 1999. She secretly organised religious gatherings, spread the gospel, recruited new members and developed her religious organisation. She claimed that her underground church had more than 60 members. She then said that her activities in the underground church were finally discovered by the local government in June 1999, and she was placed on a 'black list' by the PSB. She says that she had to hide in a friend's place in order to escape from persecution. She decided to leave the People's Republic of China, and used a false passport to do so, 'with the strong helps of my friends'. 33 In the section of the Tribunal's rather brief 'Decision and Reasons for Decision', the Tribunal dealt with the significance of the passport on which the appellant travelled to Australia, and the stamps within it, as follows: '… the passport she used for entry into Australia, which was issued in Hong Kong in 1993, shows that she travelled to Japan in April 1996 on a visa issued in Hong Kong in March of the same year. Her claim about being in a PRC jail throughout 1996 and the facts evident in her passport appear to be mutually exclusive. The Applicant claims that the identity in the passport is false, but it nevertheless bears her photograph and there is no evidence that this photograph is a substitution for any other that was previously sealed into the passport. A reasonable conclusion to draw from this is that she used it in 1996 to travel from Hong Kong to Japan. It is open to the Tribunal to consider the Applicant's claim about being jailed for a year in 1996 to be false. … The Tribunal notes that the Applicant claims to have been in the PRC until immediately before she came to Australia. This means that she must have returned there from her travels in Japan, a Convention state signatory for a significant period before travelling on to Thailand, Malaysia and Singapore, before coming here.' 34 It may be observed that there is no reference in this part of the Tribunal's 'Decision and Reasons for Decision' to the Tribunal having put to the appellant the inconsistency between her claimed period of detention and his interpretation of the stamps in the passport as being indicative of her travel to, relevantly, Japan, in April 1996. In the section of the Tribunal's 'Decision and Reasons for Decision' headed, 'FINDINGS AND REASONS' the Tribunal dealt with the passport issue as follows: 'The Tribunal accepts that the applicant is the person who she claims to be in her PRC identity card, and not the person named in her Hong Kong passport. It accepts that she obtained this passport by fraudulent means. [It may be observed that no finding was made in relation to when or how the passport was so obtained.] … … Noting that there was a major crackdown on the Shouters in 1993 and 1994, it is incongruous that the applicant only departed the PRC temporarily, evidently returning there before coming to Australia. It is also incongruous that she did not seek asylum in Japan when she had the chance. The map covered by her passport stamps indicates some kind of demand-driven itinerary, and not at all one that was initiated by a single, significant "push" episode. … The Tribunal accepts that, posing as the person named in her travel document, the applicant was in Japan in April 1996 and not in a PRC prison, let alone for the reasons she claims to have been detained. It thus finds that the bulk of her relevant claims in this application are false.' (Emphasis added) 35 The use of the word, 'evidently' provides further support for the case that the interpretation placed by the Tribunal upon the appellant's movements before coming to Australia were attributed to what was contained in the passport which she obtained by fraudulent means, and upon which she travelled to Australia, and did not involve any questioning of the appellant to expand upon that aspect of her account, when she claimed to be in detention at a time when, if the passport had been held by her at the time, she would have been outside the People's Republic of China. It seems to me that the findings of the Tribunal, in relation to this pivotal matter, demonstrate a failure by the Tribunal to exercise jurisdiction. 36 There are a number of claims made by the appellant in her statement in support of her Application for Review of the Minister's delegate's decision, which were not addressed by the Tribunal in its statement of decision and reasons. 37 No consideration was given to the appellant's claims that her parents were pious Christians who had been subjected to cruel persecution owing to their religious beliefs. No consideration was given to the claims made by the appellant in respect of setting up the underground printing factory and printing the monthly magazine named 'True Love of the God'. In relation to her own beliefs and religious observance, there was scant little consideration given to the appellant's claims in the Tribunal's Decision and Reasons for Decision. As has previously been observed (see WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]): '… it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. … Degrees of understanding and commitment of those practicing any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.' 38 In the 'CLAIMS AND EVIDENCE' section of the Tribunal's 'Decision and Reasons for Decision', it said: '… When asked about her religious activities in Australia … she was so vague as to attract serious scepticism regarding her devotion and leadership qualities: she could not name precisely where her congregation met in Sydney; she claimed she did not know because she was usually taken to the "church" by friends who had been part of her congregation back in the village, which amounted to an assertion to the effect that she now followed quite blindly those whom she had previously led; and addressing the fact that she had been unable to distinguish the Shouters from other Christian sects in her DIMA interview, she said she had not dared to do so for fear of details of that interview "leaking" back to the PRC. All of this evidence was deeply unsatisfactory …' 39 In relation to the Tribunal's observation that the appellant was unable to distinguish the Shouters from other Christian sects when interviewed by the Department well before the Tribunal hearing, the Tribunal went on to say in its 'FINDINGS AND REASONS': 'The Tribunal notes that the primary decision [of the Minister's delegate] in this matter placed the Applicant on notice as to the importance of knowing details about the Shouters and their uniqueness. The fact that she did so little "homework" in the intervening six months indicates that the success or failure of the present application were factors of less importance to the Applicant than some other factor …' 40 The Tribunal said in respect of the appellant's beliefs and religious observance: 'The Applicant did not satisfy the Tribunal that she has ever been a member of the Shouters' cult, let alone one of its leaders. As the Tribunal has shown, the Applicant's evidence about her involvement with the cult is highly inconsistent …' 41 Somewhat curiously, the Tribunal seems to have been more concerned with the tenets of what he described as the Shouters 'sect' or 'cult' rather than with the Christian beliefs of the appellant and her religious observance. It seems to me that the Tribunal's comments verged on mockery. It is hardly surprising that if the appellant was taken to her church by friends following her arrival in Australia, she would not necessarily know its street address or where it was that the congregation met in Sydney. Furthermore, it is peculiar to think that the Tribunal had an expectation that the appellant should have undertaken study between the time of her Departmental interview and the time of the Tribunal hearing, with a view to identifying features of the Shouters denomination which distinguished them from other denominations within the Christian church. 42 The other matter to which the Tribunal gave particular attention was what it saw as a conflict of evidence between the place at which the underground church was said to have worshipped. Originally, the appellant had referred to the meetings taking place in a mud house in her village. Later, it was suggested that there had been successive movements from mud hut to mud hut over seven years. In relation to this, the Tribunal said: 'The claims about the hut or huts are sufficient example of a tendency on the applicant's part to alter her evidence significantly in the face of adverse information.' 43 No adverse information was identified by the Tribunal in its reasons in respect of this finding. 44 All these matters taken together, in my view, highlight a failure on the part of the Tribunal to exercise the jurisdiction conferred upon it by the Act. In my opinion, jurisdictional error has been established and it would be appropriate, but for consideration of questions of discretion, to order that constitutional writ relief issue in relation to the Tribunal's decision. 45 In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [53] and [55] Gaudron and Gummow JJ said: '53 The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) [of the Constitution} with respect to prohibition involves "two separate questions". The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. … … 55 No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution. …' (Footnotes omitted) 46 Their Honours proceeded at [56] to refer to the joint judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 where their Honours said at 400: 'For example, the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.' 47 Counsel for the Minister has urged the view in this case that the appellant was guilty of unwarrantable delay and that it would be just for relief in the nature of certiorari and mandamus to be withheld. In my opinion, the submissions of the respondent Minister should be accepted. 48 In Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 a Full Court comprising Branson, Emmett and Bennett JJ had a similar matter under consideration. At [30] their Honours said: '30 We consider it appropriate to start from the position that an applicant for judicial review of an administrative decision made more than seven years earlier is required to offer a satisfactory explanation of why the application was not made earlier. The evidence and submissions of the first respondent bearing on this issue do not constitute a satisfactory explanation. Rather they have satisfied us that he deliberately undertook a course of conduct that would render it difficult, if not impossible, for the Tribunal, his migration agent and the Department of Immigration to find him. We are also satisfied that he made no real effort to ascertain the fate of his application to the Tribunal. These conclusions render it unnecessary for us to consider the apparent strength of the first respondent's claim to be entitled to a protection visa.' 49 One only has to turn to the unchallenged findings of Federal Magistrate Orchiston at [30]-[31] as quoted above to note that the appellant knew as early as May 2000 that her Application for Review by the Tribunal had been refused and that she must have had some knowledge of the contents of the decision. 50 In any event, her professed reasons for not having obtained a copy of the decision are unacceptable. Had she been disturbed by what she knew the decision to be and wished to take any further action in a Court in relation to it she should have at least gone to the Tribunal or gone to her migration agent yet again to find out what the precise terms of the Tribunal's decision were. 51 Furthermore, it may be observed from her Honour's reasons for judgment that the appellant knowingly moved on at least three occasions with a view to avoiding detection as an illegal non-citizen within Australia. For these reasons, it would not be appropriate to order that constitutional writ relief should issue. 52 In the circumstances, I am of the opinion that the appeal should be dismissed. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate: Dated: 4 September 2008 The Appellant appeared in person.

Counsel for the First Respondent: G T Johnson

Solicitor for the First Respondent: Sparke Helmore

The Second Respondent filed a submitting appearance.