SZLIQ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT BUCHANAN J: 1 This appeal will be upheld. 2 The appellant claimed to be a farmer in China who feared persecution in her own country after she protested against the local Party Secretary who, she said, had misappropriated her farmland. She said she organised protests and that she was subjected to mistreatment and persecution by the police as a result. Her further activities were said to expose her to immediate arrest. The detail of all her claims does not require further analysis because the ground upon which the appeal will be upheld is a narrow one. 3 The appellant arrived in Australia on 13 January 2007 and applied for a protection visa on 26 February 2007. A delegate of the first respondent (the Minister) decided to refuse the grant of a visa on 19 March 2007. The same day the appellant applied to the Refugee Review Tribunal ('the RRT') for review of the delegate's decision. The RRT held a hearing on 22 June 2007. During the hearing, the RRT records: 'The applicant stated she planted rice, peanuts and sweet potatoes. She stated the sweet potatoes were planted in mid April. She stated they grew for 2 months and were harvested in mid June. She stated she planted sweet potato 5 cm apart. She stated that rice was planted in March (Spring) and took 3 and half months to grow and was harvested in mid June. She stated the peanuts were also planted in March, took four months to grow and were harvested in mid July.' 4 It is not clear under what circumstances these statements were made but it seems reasonable to infer, in the light of other material to which reference will be made, that the statements were made in answer to questions put to her by the RRT. 5 On 17 July 2007 the RRT wrote to the appellant in a letter addressed to her authorised recipient. The letter was clearly written in order to comply with the obligations on the RRT imposed by s 424A of the Migration Act 1958 (Cth) ('the Act'). Section 424A of the Act provides as follows: '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 6 The effect of s 424A(2) is that the information conveyed to the applicant and the invitation to comment must be in writing. The letter in part said: 'Your knowledge of farming At hearing on 22 June 2007 you stated you planted sweet potato 5 cm (or 2 inches apart). Evidence before the Tribunal suggests you should plant sweet potato 15 to 18 inches apart. This may lead the Tribunal to conclude you do not have knowledge that is consistent with the claim you planted sweet potato or that you are farmer. This may lead the Tribunal to conclude that you are not telling the truth.' 7 There were other matters which were also raised but it is not necessary to discuss them. 8 In neither the letter to the appellant nor, later, in its decision did the RRT state the source or nature of the 'evidence' which it said was before it. I think that probably the failure to identify the nature of the evidence was itself a breach of the obligation in s 424A(1)(a) but, in light of further material to which reference will be made it is not necessary to reach a final decision about that issue. There is no doubt, however, that the issue was relevant to the RRT's deliberations and was one of the reasons why the RRT formed a view adverse to the appellant about her credibility. The RRT said: 'At hearing, the applicant did not display a knowledge of farming and in particular of sweet potatoes that was commensurate with her alleged farming activities. The applicant subsequently stated she made a mistake, she did not know the exact meaning of centimetre and she did not know how long 1 centrimetre [sic] was. The Tribunal has considered this submission however does not accept it. That is because when the Tribunal asked how far apart did she plant sweet potato, the applicant measured the distance in centimetres. The Tribunal finds that if she did not understand that word, then she would not have used it and would have measured the distance in another way. The Tribunal does not believe that the applicant has ever planted sweet potato. This leads the Tribunal to conclude she is not telling the truth about her farming experience. The Tribunal considers that this goes to the very basis of her claims that her farming land was taken and sold by the Party Secretary.' 9 After the RRT affirmed the decision of the delegate in a decision handed down on 23 August 2007 the appellant applied to the Federal Magistrates Court of Australia ('the FMCA') for judicial review of the RRT. It is apparent from the decision of the FMCA (SZLIQ v Minister for Immigration and Anor [2008] FMCA 382) handed down on 19 March 2008 that the FMCA had reservations about the approach taken by the RRT but concluded that the RRT's findings of fact were effectively immune from review. In the course of its decision the FMCA identified the source of the 'evidence' to which the RRT referred in the letter of 17 July 2007. I shall set out the relevant passage in the decision of the FMCA before some further discussion of this issue. The FMCA said at [5]-[6]: 'The concerns which the Tribunal had with the responses given by the applicant were articulated by it in the s.424A letter, which is extracted at [CB 105] in the Tribunal's record of decision. The concerns raised included the applicant's knowledge of farming, her husband's presence at the farm and her alleged leadership of the group. In relation to her knowledge of farming the Tribunal had serious concerns about the distance between each planting of sweet potatoes. The applicant stated that she had planted sweet potatoes approximately 5 centimetres apart, whereas the Tribunal, apparently relying upon a book by Alan Searle [sic], entitled "Growing Vegetables" [CB 74‑75] asserted that a farmer in China would plant sweet potatoes 18 inches apart. The applicant responded in her statutory declaration that she did in fact plant the sweet potatoes between 15 and 18 inches apart and she did not know the exact meaning of a centimetre. The Tribunal took the view that this response was not acceptable because the applicant had herself referred to centimetres in answer to the original question and therefore she must have understood what a centimetre was: "The Tribunal finds that if she did not understand that word, then she would not have used it and would have measured the distance in another way. The Tribunal does not believe that the applicant has ever planted sweet potato. This leads the Tribunal to conclude she is not telling the truth about her farming experience. The Tribunal considers this goes to the heart of what she was doing in China and goes to the very basis of her claim that her farming land was taken and sold by the party secretary." It is not for this court to cavil with the Tribunal's findings of fact, even if it might disagree, and disagree strongly, with the conclusions reached provided those conclusions are available on the evidence (see: Minister for Immigration v Eshetu[1999] HCA 21 at [40] per Gleeson CJ and McHugh J). If the applicant's failure to plant sweet potatoes at the distance recommended by Mr Searle [sic] was the only ground upon which her application was to be rejected a court might have serious concerns. But in fairness to the Tribunal, although what appears to be an inordinate amount of emphasis has been placed on this fact, it was by no means the sole reason for the rejection of the applicant's evidence and is just part of its general concern as to her credibility because of the way in which she appears to have trimmed her responses and provided evidence that the Tribunal considered to be implausible…' 10 The Appeal Book in the present appeal contains an extract (consisting of only several pages) from the publication 'Growing Vegetables'. The author is Allan Seale. On what appears to be the back cover of the book the following appears: 'An expert's guide to the home growing of garden fresh vegetables. All you need to know about Preparing the beds Soil Plant Foods Mulching Watering Cultivation Weed Control Sowing Seeds Direct Sowing including details of thirty-eight vegetables and their individual requirements.' 11 On what is numbered p 59 the following appears in relation to sweet potatoes: 'SWEET POTATOES Preparation of Soil and Sowing - Sweet potatoes will grow in poor soil, but for best results the soil should be prepared as suggested for potatoes. They are propagated by placing tubers in moist soil during spring then striking pieces as cuttings when 4 to 6 inches long. They root readily in sandy soil. The plants are set out in rows 30 inches apart with 15 to 18 inches between the plants. Vines are lifted occasionally to prevent them from rooting down at the joints. Tubers are dug when plants commence to die down in winter and then stored in a cool dry place. They are ready to cook if they dry white when cut. Exuded sap and greenish black discolouration suggests immaturity.' 12 This seems a very flimsy foundation upon which to pose questions, much less draw conclusions, about farming practices in what appear to have been small village plots in China. Assuming, for the moment, that s 424A(1)(a) applied, it does not appear to me that the information provided to the appellant in the letter of 17 July 2007 complied with it. Details of the source of the 'evidence' should have been given. The appellant should have had an opportunity to make some comment upon whether the source upon which the RRT relied was relevant to her claimed activities in China. I have not overlooked the fact that the appellant's response to the letter of 17 July 2007 is not to her credit. That response was: '1. I have to accept that I actually planted sweet potato about 15 to 18 inches apart. I apologised for my mistake. I have only had 3-year education. I really did not know exact meaning of centimetre (cm)"; and I really did not know how long it would be for 1 "centimetre (cm)".' 13 The RRT might have been correct to conclude that the appellant's response was an indication that she was not to be believed. That is not to the point. The obligation under s 424A, if it applied, is a strict one. 14 The issue which I have identified was not a ground relied upon by the appellant in her application for judicial review before the FMCA and it is not a ground in her appeal to this Court. However, I do not think that the issue can be overlooked. When the appeal came on for hearing, on 14 August 2008, I raised my concerns with Ms McWilliam, who appeared for the Minister. She sought, and I allowed, an opportunity to make further written submissions about the issue. 15 In the written submissions which were duly provided Ms McWilliam advanced a number of arguments in support of the contention that no jurisdictional error was committed or, at worst, any error should be regarded as inadequate to found relief as a matter of discretion. It is not necessary for me to address all the points she made, some of which are not directly concerned with the basis of my reservations about the present matter. The submissions which require attention were the following (which I shall refer to as points 1, 2 and 3): '5. It is well established that s 424A(3)(a) is to be construed as being directed towards general information, rather than requiring satisfaction of two separate limbs, the first being that the information is not specifically about the applicant and the second being that the information refers to a class of persons of which the applicant is a member: NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264 at [67]-[71], [138]. 7. If, contrary to the first respondent's submissions, the Court determines that s 424A of the Act does apply, then there was no failure to comply with that provision, as a letter was sent to the appellant, setting out the substance of the information (AB97-98), and its relevance. The Tribunal was not obliged to either specify, or to provide to the appellant, the particular source documents relied on: see NAVM v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 99 at [32]-[33]. 8. In response to a concern of the Court that the information relied on by the Tribunal may not have been applicable to farming in China, again it is well established that the choice and assessment of the information relied on by the Tribunal is a factual matter for the Tribunal alone: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11-13]. Any investigation as to whether there was more appropriate information on farming available which the Tribunal should have considered is tantamount to merits review, an unavailable avenue of appeal in both this Court and the Court below.'