SZLRJ v Minister for Immigration and Citizenship

BEFORE THE TRIBUNAL 6 The Tribunal accepted that prior to coming to Australia in October 2005 the appellant was not a practitioner of Falun Gong and it was during the first visit that she became involved in Falun Gong. The Tribunal noted that the appellant had voluntarily returned to China in January 2006 and as such it did not accept that she then had a well-founded fear of harm based on her association with her brother or sister-in-law. The Tribunal found the appellant was not a credible witness as her evidence relating to her distribution of the anti-government DVD was extremely vague, general and unsubstantiated. The Tribunal found her claims in relation to being of adverse interest to the Public Security Bureau (the PSB) were unsubstantiated and noted that had she been of interest to the PSB she would not have been able to leave China. The Tribunal found that these claims, as well as her Falun Gong practice in Australia, had been engaged purely to enhance the appellant's claims. 7 The Tribunal was also satisfied that the appellant would not be involved in any such activities were she to return to China, and therefore that she would not be subject to persecution for a Convention reason now or in the reasonably foreseeable future.

THE FEDERAL MAGISTRATES COURT 8 Before the Federal Magistrates Court the appellant claimed that the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) (the Act) in that it failed to raise an issue which was relevant to the decision under review, namely, 'the applicant's level of knowledge of the contents and significance of the publication "Nine Commentaries on the Communist Party"'. 9 Section 425 of the Act relevantly provides: 1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 10 The learned Federal Magistrate held that the transcript of the Tribunal hearing showed that the appellant had been questioned about her knowledge of the 'Nine Commentaries on the Communist Party' and finding her answers unsatisfactory, gave her an opportunity to expand on her answers and to continue to the point where her knowledge was exhausted. She remembered nothing more. His Honour was satisfied that in these circumstances there was no obligation on the Tribunal to take the line of questioning any further. 11 The learned Federal Magistrate found that the Tribunal's conclusion 'that a person who knows so little about a piece of propaganda is unlikely to have risked life and limb to distribute it,' was open to it on the material. His Honour stated that the Tribunal was not required to give the appellant a 'running commentary' about what it thought about the evidence being given. His Honour therefore concluded that there was no breach of s 425 of the Act. 12 Important to the Tribunal's decision was its finding that the appellant: Was not only totally uninformed about the contents and significance of the "Nine Commentaries on the Communist Party", but also she did not reveal any understanding, sympathy, or feel for the issues involved and the polemics of the arguments enshrined in the commentaries 13 On the basis of this finding the Tribunal went on to make general findings about the value of the appellant's evidence; saying 'It … follows that the Tribunal is satisfied that the applicant has not been truthful in her claims and is not a credible witness'. 14 Mr Adam argued that at no time did the Tribunal identify to the appellant that her knowledge of the Nine Commentaries could be relevant to the decision under review. Nor did the Tribunal identify this issue by way of a letter inviting the appellant to comment on information that may be the reason for affirming the decision. 15 Important to the Federal Magistrate's reasons not to grant relief was his view (at [23]) that any further questions would have been futile, as, in his Honour's view, the appellant had already exhausted her stock of knowledge about the issue in question. In the circumstances, it was concluded that any further questioning would have done nothing more to identify the significance of a question already put to the appellant.

THE EXCHANGE 16 The relevant exchange on which the appeal is based is not expansive. It is set out below: TRIBUNAL MEMBER What was stated in this publication? APPLICANT: Nine comments about CCP TRIBUNAL MEMBER Tell me about it, what was in it? APPLICANT: I'd like to explain first what is Nine Comments about CCP. TRIBUNAL MEMBER I want you to tell me what was on nine comments? APPLICANT: Is nine points and just to comment the evil nature of CCP. TRIBUNAL MEMBER So tell me what are the nine comments? APPLICANT: I cannot recite all of them. TRIBUNAL MEMBER Give me some of them? APPLICANT: Yes. I can tell you some rough information about the content of the nine comments and the first point was is related to theory and they talk something about the evil nature of the CCP. TRIBUNAL MEMBER Go on? APPLICANT: And CCP obtained the power through the means of violence and fear and threatening. They, the CCP replace human, the nature of the human beings with the nature of the putty (sic). TRIBUNAL MEMBER Anything else? APPLICANT: Basically I can remember those. TRIBUNAL MEMBER Sorry? APPLICANT: Basically that is what I remember.

GROUNDS OF APPEAL 17 The notice of appeal raises the following grounds: 1. The Federal Magistrate erred in employing a process of reasoning contrary to the principles enunciated by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. 2. The Federal Magistrate erred in not finding jurisdictional error, refusing to grant relief and in dismissing the application.

Appellant's submissions 18 The Court was grateful for the assistance of Mr Adam of counsel who represented the appellant pro bono. Mr Adam submitted that the question was whether the issues to which the Tribunal's reasoning processes were directed had been adequately notified to the appellant (SBZEL at [21]). 19 He observed that in SZBEL, the High Court held at [35]: … if the Tribunal takes no step to identify some issue other than those that the delegate considers dispositive, and does not tell the applicant what the other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. Andat [47]: But 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. 20 It was submitted that contrary to the principles enunciated by the High Court in SZBEL, the Federal Magistrate did not begin by first identifying the issues from the Tribunal's reasons for its decision. 21 For the appellant it was argued that instead of first identifying the issues from the reasons for the Tribunal's decision and then asking whether the appellant had been sufficiently put on notice of the issues, the Federal Magistrate sought to distinguish the significance of the question (which does not attract the obligation imposed by s 425 of the Act) from the obligation to put the appellant on notice of an issue that may be important to the decision. 22 On the basis of the questions put to the appellant by the Tribunal, it was submitted that the appellant could not have reasonably anticipated that the question of her knowledge of the Nine Commentaries would be the critical issue in the proceedings. 23 For the first respondent it was submitted that there were several other bases for rejecting the appellant's claims. The Tribunal also noted that on her own claims, the appellant did not experience serious harm amounting to persecution once she returned to China and that her evidence about distributing the anti-government DVD was extremely vague, general and unsubstantiated. Those were reasonable bases on which the Tribunal could reject that evidence. 24 The Tribunal also found on the basis of independent country information that if the appellant was of any interest to the PSB she would not have been allowed to leave China in March 2007. The Tribunal rejected her claim to be of interest to the PSB then or subsequently. It noted her claims that the PSB were looking for her and questioning her husband were completely unsubstantiated. 25 The Tribunal also found that these claims were manufactured in order to be granted the visa and that her Falun Gong practices in Australia were engaged in purely to enhance her claims to the visa. For those reasons they were disregarded pursuant to s 91R(3) of the Act. 26 As a consequence, while the Tribunal accepted that the appellant had practised Falun Gong secretly in China from January 2006, it found that if she practised at all in China in the future, it would not be openly or such as to expose her to risk of discovery and that there was not a real chance of her experiencing serious harm for this reason. It was also concluded by the Tribunal that if the appellant returned to China she would not engage in anti-government activity. It found that such activity in Australia had been engaged in solely to enhance her claims to the visa and accordingly her claimed fears were not well-founded. 27 For the first respondent it was contended that SZBEL 228 CLR 152 does not require the Tribunal to identify the significance of its questions. Reliance was placed on Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]-[89]. The Tribunal was not required by s 425 to give a running commentary on the appellant's evidence (SZBEL at [48]). In Applicant A125 163 FCR 285 at [88]-[89], the Court said: [88] The short answer to the applicant's submission based upon SZBEL 228 CLR 152 is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL 228 CLR 152, and is an attempt to import the requirements of s 424A(1) into s 425. [89] In any event, we consider that the RRT did bring to the applicant's attention its concern about his claim to have remained at his school, in the face of Maoist threats, right up until the time he left Nepal. It did so by repeatedly asking him to explain where he had lived just prior to coming to Australia. That led to his giving apparently contradictory evidence. However, it also clearly put him on notice that the timing of his having left the school was a matter of concern and therefore adequately informed him of the way in which his answers might be used. In this case the relevant issue identified by the RRT was the apparent disparity between the applicant's claims of having been subjected to persecution by the Maoists, and remaining living at home, and running his school, until he left for Australia. As SZBEL 228 CLR 152 makes clear (at [48]) the RRT is not obliged to provide "a running commentary upon what it thinks about the evidence that is given". Accordingly, the first additional ground is not made out. 28 It was contended that the notice of appeal misunderstands the reasoning of the learned Federal Magistrate. It was not the case as contended that his Honour was setting up a dichotomy between conclusions 'obviously open' and 'mental processes' (SZBEL at [30]-[31]), still less declining relief because any further questioning by the Tribunal would have been futile. Rather, his Honour was explaining why the case fell within the principles in Applicant A125 163 FCR 285 at [88]-[89] and SZBEL at [48]. His Honour suggested that even on the common law principles of procedural fairness which are not applicable because of s 422B of the Act, the Tribunal's questioning would have been unobjectionable. The exchange about the DVDs sufficiently identified this as a relevant issue: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 per the Full Court at 590-591. That decision was also referred to in SZBEL at [32]. In Alphaone the Court said at 590-591: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369: "… the rules of natural justice do not require the decisionmaker 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 that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished." A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox J), 513 (Neaves J). In Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 499, Lockhart J expressly agreed with the observation of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration, Local Government and Ethnic Affairs (1990) 19 ALD 755 at 756-757 (French J) and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (supra) at 103 (Keely J), 119 (Gummow J). The general proposition set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109: 1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors in which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J). 2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634 29 Given that common law procedural fairness does not require the Tribunal to set out for an applicant's consideration during the hearing every detail of the reasoning process it eventually employs (Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 201 ALR 437 at [54]), it is not reasonably arguable that such an obligation could be said to derive from s 425 of the Act. 30 In the end for the first respondent it was stressed that the conclusion of the Tribunal that the appellant was not credible and her claims were fabricated was a finding of fact par excellence; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

ANALYSIS 31 The learned Federal Magistrate, after discussing a number of cases that applied SZBEL 228 CLR 152, held that the conclusion arrived at by the Tribunal, 'that a person who knows so little about a piece of propaganda is unlikely to have risked life and limb to distribute it', was one that was open on the known material. His Honour concluded that what the appellant asked for was a running commentary from the Tribunal upon what it thought about the evidence being given, something that it was not required to do under SZBEL. 32 The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material: Alphaone 49 FCR 576. What is obviously open to the decision-maker can only be identified by having regard to the issues arising in relation to the decision under review: SZBEL 228 CLR 152 [at 38]. An exercise in characterisation must be undertaken to identify what the dispositive or determinative issues are; that is, the issues on which the decision to reject the appellant's claim is based: see SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486. The Tribunal is not required to identify the significance of the questions that it puts to the appellant or the ultimate matter of issue to which those questions go: Applicant A125 163 FCR 285 at [88]. 33 One only of the determinative issues was the appellant's knowledge about the content of the Nine Commentaries DVD. It was not the only issue. The Tribunal found that the appellant was totally uninformed about the contents and significance of the DVD. It also found that she did not reveal any understanding, sympathy or feelings for the issues involved and the polemics of the arguments enshrined in the commentaries. The Tribunal concluded that this would not be the case for someone who claimed that they wanted to overthrow the Communist dictatorship, had been actively involved in anti-Communist activities in China and had taken significant risks for the cause (breaking the internet block and distributing the Nine Commentaries DVD). This led the Tribunal to find that the appellant was not truthful in her claims and was therefore not a credible witness. 34 During the hearing the Tribunal asked a number of questions about the content of the DVD. The Tribunal tried at least 5 times to have the appellant give information about the content of the DVD. As noted by the learned Federal Magistrate, the appellant was not very forthcoming and the exchange came to a point where she could not remember anything else. His Honour observed that any further questions would not have done anything more than identify the significance of the question. 35 In my view, the learned Federal Magistrate was correct in concluding that the Tribunal is not required to identify the significance of the questions that it puts to the appellant or the ultimate matter of issue to which those questions go: Applicant A125 of 2003 163 FCR 285 at [88]. 36 Further, by the Tribunal's line of questioning the appellant should have been on notice that her truthfulness was at issue. The Tribunal's finding 'that a person who knows so little about a piece of propaganda is unlikely to have risked life and limb to distribute it', was one that was obviously open on the known material: Alphaone 49 FCR 576 and SZBEL 228 CLR 152. Therefore the Tribunal has discharged its obligation under s 425 of the Act. 37 In my view, the approach of the Federal Magistrate and his Honour's conclusions were correct.

CONCLUSION 38 The appeal will be dismissed. The appellant is to pay the costs of the first respondent fixed at $3,000. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 17 November 2008 Pro Bono Counsel for the Appellant: B Adam

Solicitor for the First Respondent: Sparke Helmore