SZMIA v Minister for Immigration and Citizenship

The delegate's decision 5 The delegate rejected the appellant's claim, noting that he claimed that together with the friend, he organized other demobilized soldiers to promote their political opinion from March 2007, until their arrest on 21 July 2007. In my opinion, that was a recognition of the appellant's clearly articulated claim in his application for a protection visa: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 20 [63] per Black CJ, French and Selway JJ. But, as will appear, the tribunal entirely denied that such a claim had been made when it came to deal with both its questioning of the appellant, and its final decision-making process. 6 The delegate went on to reject that claim, due to a lack of detail, as well as rejecting the claim that the friend had then able to continue with his activities in the internet café for a protracted period. The delegate also rejected the claim that the appellant had been able to continue with his claimed activities, following his release from detention, and ultimately rejected the application.

Proceedings in the tribunal 7 The tribunal's decision record set out in summary details of the statutory declaration. It then recorded its questioning of the appellant in relation to the activities he undertook from March 2007. First, it asked him to explain how and when he prepared the pamphlets. It recorded that the appellant had said that he had organized retired soldiers on 18 August. The tribunal recorded that it had asked him to clarify, and the appellant had told it that he had spread the information once in March, nominating 10 March 2007, and then from 17 August 2007. The tribunal said that it had asked him if there were any other occasions than the two, which he had recounted and then recorded: "The applicant said the first time that he spread information was on 10 March 2007. He later said that from 10 March 2007 until 21 July 2007 he spread information. The Tribunal asked him to explain why he had earlier said that he had spread information on 10 March 2007 and 18 August 2007, or from 17 August 2007. The applicant said there were two period; there was one was from 10 March 2007 and there was another period that commenced on 17 August 2007 until he came to Australia". 8 The tribunal then recorded that it had noted with the appellant the inconsistency in his evidence, and indicated that it may raise doubts about his veracity. It asked for his comments. He said again that there were two periods, one from 10 March 2007 until 21 July 2007 and the second period, from 17 August 2007 until he came to Australia. The tribunal recorded that the appellant had explained that perhaps his language was poor. The tribunal suggested that it would further consider his explanations, and said: "The Tribunal referred to the applicant's Statutory Declaration that had been provided in support of his application for a protection visa. The Tribunal noted that there is no mention in the Statutory Declaration of the periods about which he told the Tribunal. The Tribunal indicated that these are significant details and the fact that they were not mentioned in the Statutory Declaration could raise doubts about the veracity of his claims and his credibility generally. The applicant said in his Statutory Declaration, he had mentioned March 2007. The Tribunal agreed that in the Statutory Declaration, there is reference to 'from March 2007' but noted that there is no mention of the periods that he had told the Tribunal about, namely the period from March 2007 until July 2007, and August 2007 until his departure from China. The Tribunal asked him why he did not mention those periods in the Statutory Declaration. The applicant said when the Tribunal asked him for details, he was responding to the Tribunal's questions. The Tribunal indicated to the applicant that it would consider further his explanations. The Tribunal noted that whilst a hearing is an opportunity to provide further details about one's claims, the Tribunal is of the view that not providing significant details in a detailed and comprehensive Statutory Declaration could raise doubts about the veracity of his claims and credibility generally. The applicant said that if he had not said the two periods, the Tribunal may not believe it. He said he did not want any misunderstanding between himself and the Tribunal. The Tribunal indicated it would further consider the matter." (emphasis added) 9 The tribunal also referred to other passages in the statutory declaration, as having been the subject of its questioning of the appellant. The tribunal formed an adverse view of the appellant's credibility, observing that, in the course of the hearing, he gave it the impression of being evasive, argumentative, and not wanting to answer questions. The tribunal also formed the view that his responses were characteristic of someone who had rehearsed a pre-prepared response and that answers that he gave were internally inconsistent and inconsistent with his own written claims. 10 It said that the appellant had provided a lengthy and detailed statutory declaration, prepared by a migration agent. However, it considered that the statutory declaration contained irrelevant considerations and observed that when it gave significant details, such as when, where and how the appellant had spread information, the statutory declaration was lacking in those details, suggesting to the tribunal that that it had been fabricated. The tribunal noted that it had concerns about a number of matters. Significantly, the tribunal returned to the statutory declaration, saying that: "… there is no mention of the periods about which he told the Tribunal. As suggested to the applicant, the Tribunal considers that the periods when the applicant had allegedly spread pamphlets to be significant details. The applicant said in his Statutory Declaration, he had mentioned in March 2007. The Tribunal agrees that in the Statutory Declaration, there is reference to 'from March 2007' but there is no mention of the periods that he had told the Tribunal about, namely the period from March 2007 until July 2007, and August 2007 until his departure from China". (emphasis added) 11 The tribunal went on to say that it was of the view that the fact that the details about those periods were not mentioned in the statutory declaration raised doubts about the veracity of the appellant's claims and his credibility generally, and that it was not convinced by his comments that if he had not said the two periods, the tribunal may not believe it, or that he did not want any misunderstanding between himself and the tribunal. 12 In the section of its Statement of Decision and Reasons headed "Findings on the applicant's claims", the tribunal noted that it appreciated that an adverse credibility finding was a serious finding, which must be made cautiously. It recorded that some of the evidentiary problems mentioned in its reasons, most of which I have not referred to, may be perceived as being minor when considered individually. But, the tribunal observed that it had conducted a lengthy hearing during which it observed the appellant very carefully, and recorded its impression of him as being unusually argumentative, and defensive, and giving an impression of not wanting to respond in a frank manner, but rather in a coached and pre-prepared style. It concluded that those observations, its expressed concerns in its earlier reasoning, and its consideration of the evidence as a whole, had led it to conclude that the appellant was not a credible witness. The tribunal rejected his claims, in effect, in their entirety. 13 The tribunal also mentioned that it was dealing with another case with similar circumstances to those of the appellant, but with different claims, and said: "The Tribunal has not in any [sic] used this matter, in an adverse manner to the applicant." However, the tribunal did not disclose what it was referring to by those comments. 14 Ultimately, it concluded that it was not satisfied that the appellant had suffered any Convention or related harm, or that there was a real chance he would suffer any such harm, in the reasonably foreseeable future. It noted that he had arrived in Australia unlawfully on a Taiwanese passport, and considered that that factor did not affect its rejection of his ultimate claimed fear of persecution were he to return to China. It found that it was not satisfied that the appellant was a person to whom Australia owed obligations under the Refugees Convention.

The proceedings in the Federal Magistrates Court 15 The appellant raised three substantive grounds of appeal before the Federal Magistrates Court. First, that the tribunal had exhibited apprehended bias. Secondly, that it failed to comply with s 425 of the Migration Act 1958 (Cth). Thirdly, that it failed to comply with its obligation under s 424AA of the Act. 16 His Honour said that he was satisfied that the claim of apprehended bias had not been made out, and that there was no evidence to support it. His Honour was not prepared to draw that inference simply from the tribunal's decision record itself. 17 Secondly, his Honour noted that when the appellant had been invited to the hearing by the tribunal, its letter had told him that it had considered the material before it, but was unable to make a favourable decision on that information alone. Hence, the appellant was on notice that it was for him to satisfy the tribunal. He noted the hearing lasted for something in the order of over two and a half hours, and that in the absence of a transcript or other evidence, there was nothing to show that the appellant was cut off in giving his answers and was not able to express himself clearly and cogently with the assistance of an interpreter. He found that there was nothing to suggest the tribunal restricted the appellant to answering questions simply with yes or no, or to confuse him. The trial judge noted that, based on the delegate's conclusions, the credibility of the appellant's claims were clearly in issue at all times. He rejected the claim there had been a failure to conduct a hearing in accordance with s 425 of the Act. 18 His Honour then concluded that the tribunal was not obliged, under s 424AA, to provide a further hearing so that the appellant could answer doubts or concerns the tribunal had about his case. He found that the tribunal had the discretion whether or not to give oral particulars or information to an applicant during the hearing, but if it chose to do so, then it had to comply with the subsequent provisions of s 424AA. However, the trial judge said there was no breach of that section in the proceedings before the trial. His Honour, accordingly, dismissed the application.

Issues on appeal 19 Before me, the appellant argued that the tribunal had not fairly assessed his case. He argued that his evidence was rejected on the basis that he had not given specific information, and that the tribunal considered he was not answering its questions. 20 The appellant argued that he had not been given a fair chance in dealing with matters of concern to the tribunal under s 424AA, saying that the tribunal should have asked him to comment in writing about its concerns. And he contended that the tribunal had not made clear to him that, when it said that it was giving him an opportunity to comment towards the end of the hearing, he could deal with the matters the subject of s 424AA. He also said that the tribunal was biased in assessing his case, because it referred to the proceedings with some other person. 21 During the course of argument, I put to counsel for the Minister that it appeared that the tribunal had mischaracterised: (1) a real claim that the appellant had put forward in his statutory declaration of protest activity from March 2007 until his arrest on 21 July 2007 and had asserted, in the passages I have quoted, that there was no mention of that period; (2) the appellant's assertion of his continuing to protest after his release from prison. 22 As counsel for the Minister pointed out, the tribunal had summarized the contents of the statutory declaration, including the substance of pars 11-15, in its articulation of the appellant's claims. The Minister argued that the tribunal had given the appellant an opportunity to identify in his oral evidence, the period or periods or occasion or occasions on which he said his protest activity had occurred, and that when first asked, the appellant had nominated simply one occasion on 10 March 2007 and the period from 17 August 2007. He contended that later in its questioning, the tribunal had identified that the appellant was making different claims as to the periods from 10 March until 21 July 2007 and from 17 or 18 August until he came to Australia. 23 The Minister argued that on no fair reading of the statutory declaration could one infer that the claim in relation to the second period commenced on 17 August 2007. He said this followed because of the juxtaposition of the date of 1 September 2007, as the date on which the friend had been secretly sent to a labour camp, and the commencing words of par 15 "After that, I continually organised" further protest activities. The Minister argued that the tribunal had focused on the absence from the appellant's account in his statutory declaration of a statement of the periods in which the protest activity allegedly occurred. He contended that the tribunal had not mischaracterised the contents of the statutory declaration. 24 Next, the Minister argued that, even if the tribunal had made an error about the contents of the statutory declaration, that was an error of fact, not a jurisdictional error, and could not be said to be a failure to consider a clearly articulated claim. The more was this so he argued, because the tribunal had put to the appellant during the course of the hearing, as recorded in its statement of reasons, its understanding of the claim he had made, and it had given the appellant an opportunity to respond to this. Thus, it could not be said that the tribunal had not considered the appellant's claims after being properly informed by him what his claims were. Moreover, the Minister argued that the tribunal did understand the claims, but, that if in its language, it had infelicitously expressed itself, it should be given the benefit of a generous reading of its reasons. The Minister cautioned against the Court embarking on a merits review of an administrative decision. 25 In Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ, said that a court should not be concerned with looseness in the language, nor with unhappy phrasing, of the reasons of an administrative decision-maker. Such reasons were not to be minutely and finely construed with a eye keenly attuned to the perception of error. They said that the reality was that the reasons of an administrative decision-maker are meant to inform and are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons were expressed. And their Honours cautioned that any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

Consideration 26 I am of opinion that the tribunal's reasons reveal that it did not understand, or seek to articulate fairly or properly, the claim clearly articulated in pars 11-15 of the appellant's statutory declaration. No fair reading of those paragraphs could permit a construction that the appellant had not claimed there that in the period from March 2007 until his arrest on 21 July 2007 he had been involved in organizing the demobilised soldiers to spread the pamphlets which he had made. In my opinion, the tribunal mischaracterised that claim by asserting repeatedly in its questioning and in its record of its reasons, that there was no mention of such a period in the appellant's original account. 27 Having come to that view, the tribunal then reasoned about some other claims that the appellant had made orally. That may or may not have been a legitimate process of reasoning in respect of the oral claims. However, in my opinion, the emphasis which the tribunal placed on the supposed omission of the period of March to 21 July 2007 in the statutory declaration, demonstrated that it misunderstood and mischaracterised the appellant's claims. 28 Secondly, I am of opinion that the tribunal did not fairly consider whether a claim had been made that the appellant organised anti-government pamphlets for the period from 17 August 2007 until he left China. 29 It was for the tribunal to form a view about what the claim was and whether, truly construed, it was for a period from 1 September 2007, until later that month when he left China, or the period had begun at an earlier time. The nomination of the date 1 September 2007 was made in connection with the interpolation of par 14 in the statutory declaration into the appellant's account of what had happened to his friend, and when the friend had been sent secretly to a labour camp. 30 In my opinion, there was a proper basis for concluding that the claim was wider. The difficulties of a person being tested against an account provided some months before, written in a foreign language, where it is not directly put to him, and having it suggested that there was no mention in that account of an event, cannot be underestimated. However, it was for the tribunal to conduct its inquiries. The Parliament has seen fit to exclude the requirements of the natural justice hearing rule other than as provided in Div 4 of Pt 7 of the Act (s 422B). Nonetheless, having invited the appellant to appear before it under s 425(1), the tribunal had an obligation to enable him to give evidence and present arguments relating to the issues arising in relation to the decision under review. The tribunal's function was to review the decision of the delegate pursuant to s 414(1). 31 A decision-maker must give proper, genuine and realistic consideration to the merits of the case Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 92, 93 [212] per Madgwick J and 96 [229] per Conti J; Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [106] per myself. 32 In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "… involves an active intellectual process" directed at the subject matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G; Tobacco Institute of Australia v National Health & Medical Research Council (1996) 71 FCR 265 at 277G per Finn J and Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 577 [526] per Weinberg J. A decision-maker must consider the matters prescribed by law, and generally he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Limited v ACCC (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ. Gummow and Hayne JJ, in concurring, observed (East Australian Pipeline 233 CLR at 256 [102]): "It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them." See too Telstra Corporation [2008] FCA 1758 at [106]-[107] per myself. 33 I am of opinion that in the consideration of an applicant's application for review it is essential for the tribunal first, to identify what the applicant has claimed when seeking a protection visa. Mischaracterisation of a claim is not a mere error of fact. It is a failure to identify that which the applicant for review is putting forward as the basis upon which he sought a protection visa. 34 If the tribunal fails to identify a clearly articulated claim correctly, and then determines that such a claim had not been made originally, but was being put forward for the first time in the hearing and should therefore be disbelieved on that basis, it is not performing the function of reviewing the delegate's decision, which had rejected the claim originally made: cf: NABE 144 FCR at 20 [63]. 35 This is not simply a pedantic exercise, but it is fundamental. The tribunal's function of review was to review the claims the appellant actually made. Those, of course, include claims that the applicant for review may advance orally at a hearing before the tribunal. But, in this matter there was a constructive failure of the tribunal to exercise its jurisdiction to determine the claim actually put forward by the appellant in pars 11-15 of the statutory declaration. That was because the tribunal mischaracterised what those claims were, and determined (based on its own misunderstanding) that no claims had been put forward originally in the statutory declaration for the periods in question. 36 It is possible to conclude that the way in which the second period was referred to, in pars 13-15 of the statutory declaration, was for a period commencing only on 1 September 2007. However, such a conclusion would require the tribunal to first undertake a proper, genuine and realistic consideration of that claim as made. 37 But I am of opinion that there can be no possible doubt that in pars 11 and 12 of the statutory declaration, the appellant put forward a claim of continual activity from March 2007 until his arrest on 21 July 2007. The tribunal constructively failed to exercise its jurisdiction to determine that claim. It misunderstood what the appellant had put initially. It then concluded adversely to him that he had not put it originally, and that his subsequent attempt to raise it in the course of the hearing was an undermining of his credibility. 38 Indeed, the delegate had no problem in identifying that claim as being one of the issues for review: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 163 [35]. The delegate was correct to have done so. And the delegate's identification of that issue for review emphasised the error of characterization which the tribunal made. That error of characterisation had a substantive effect on the way in which the tribunal proceeded to assess the claim. The tribunal either took into account an irrelevant consideration, by considering a claim that was not made, (namely that the appellant had not put forward a claim based on his anti-government activities in the period from March 2007 to 21 July 2007) or it failed to consider a relevant consideration (being the claim he had made). 39 On either basis, the tribunal made a jurisdictional error. In my opinion, the trial judge was in error in concluding that the tribunal complied with its obligations under s 425 of the Act. Rather it mischaracterised what was in the statutory declaration. It did not conduct a review, or a hearing, in accordance with the requirements of the Act. The issues for review based on the delegate's decision clearly included the appellant's claim that he had distributed the anti-government material in the period between March and 21 July 2007. The tribunal instead raised a different issue during the course of the hearing and did not deal with the substantive issue for review raised by the delegate's decision. 40 I am of opinion that the appeal succeeds. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 15 December 2008 The Appellant: Appeared in person