SZNBE v Minister for Immigration and Citizenship

THE APPELLANT's CLAIMS 7 In his application for a protection visa the appellant claimed that he feared persecution by Chinese authorities due to his practice of Falun Gong. He claimed that in July 1999 the Communist Party cracked down on Falun Gong, and he went with others to Beijing to ask for'freedom of belief'. He claimed he was mentally and physically mistreated during 'brainwashing classes' and forced to sign documents stating he would no longer be involved with Falun Gong. He claimed that in July 2005 he was detained for three days and beaten and remained under supervision after his release. He claimed he paid a large sum of money for his passport and his trip to Australia to gain protection.

before the tribunal 8 The Tribunal was not satisfied that the appellant was a credible witness and found that there were inconsistencies in the evidence he provided. It found that the appellant had provided false information in his protection visa application, which included fictitious names and dates of birth for his wife and children. The Tribunal was satisfied that the false information provided by the appellant was designed solely to deceive Australian authorities. The Tribunal was satisfied that the appellant was aware of the information provided to Australian authorities, even if this was done through his migration agent. 9 In addition, the Tribunal did not accept that a letter from a person claiming to be the appellant's neighbour had in fact been written by that person. It also found that the dominant purpose of the appellant commencing and carrying on Falun Gong activities in Australia was to strengthen his claims to be a refugee, as a result of which this conduct was disregarded pursuant to s 91R(3) of the Act. 10 The Tribunal was also not satisfied that the Chinese authorities knew about the appellant's protection visa application and did not accept that the appellant would be at any risk of harm if he were to return to China.

THE FEDERAL MAGISTRATES COURT 11 On 9 December 2008 the appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. The grounds relied on in that application were as follows: 1. RRT didn't use favourable cases to my application. 2. Procedural fairness has been denied. RRT failed to consider the potential risks of persecution I will be exposed to as I'm a falun gong practitioner. 12 At a directions hearing held on 23 February 2009, the appellant was given leave to file and serve an amended application providing complete particulars of each ground of review and any further evidence by way of affidavit. The amended application was filed on 9 April 2009. In that application the appellant's ground was as follows: Ground 1 The second respondent ("the Tribunal") denied the applicant natural justice and procedural fairness pursuant to section 424A of the Migration Act 1958. Particulars: i) The Tribunal received information through a statement contained in the file of the Department of Immigration and Citizenship. This statement was from a travel agency in China reporting on the circumstances in which the applicant obtained a visa and how the applicant paid for his travel (CB 124). ii) This was information caught by section 424A. iii) The Tribunal did not exercise its discretion under section 424AA. iv) The Tribunal did not act in accordance with section 424A. 13 The information in question was a letter sent by the China Women Travel Service to the Department on 17 April 2008 (the Letter). The Tribunal referred to the information in the Letter at [27] of its decision as follows: On the Department's file is a statement from a travel agency in China, China Women Travel Service, reporting on the circumstances in which the Applicant obtained a visa. The writer states that the agency obtained documentation from another entity, Henan Youth Travel Service, and made its own enquiries. These included telephone calls to the Applicant's stated employer, Henan Shangdian Electric Engineering Co. Ltd, in which an employee and the company President both confirmed the Applicant's employment and travel plans. The agency also confirmed these details in calls to the Applicant and to family members of another person who was said to be planning to travel to Australia with him. The research established that the Applicant's employer was paying for the Applicant's travel to Australia. The writer also records that, after it was discovered that the Applicant had absconded from his tour group the agency contacted the President of his company and 'worked hard to make him help us to contact Mr Wu and tried to make Mr Wu return to China'. 14 The Letter had not been given to the Department or the Tribunal by the appellant. In fact the Letter arrived before the delegate's decision. 15 Before the learned Federal Magistrate the appellant's counsel submitted that the information contained in the Letter had the potential to be adverse to the appellant's claims that he fled China because of his Falun Gong practice and had borrowed money to do so. Such a claim, it was argued, did not sit well with the suggestion in the Letter that he was both gainfully employed and that his employer had actually paid for the appellant's trip to Australia. 16 Before her Honour, the first respondent agreed that the Tribunal did not give that information to the appellant either in writing or in accordance with s 424AA of the Act. However, Counsel for the respondent submitted that a fair reading of the Tribunal's decision record disclosed that this information was not information that undermined, rejected or denied the appellant's claims to be a person to whom Australia owed protection obligations and was, therefore, not part of the Tribunal's reasons for affirming the decision under review. Counsel for the first respondent submitted that, in the circumstances, the obligations of s 424A of the Act were not enlivened. 17 Her Honour concluded that a fair reading of the Tribunal's decision record did not suggest that the Tribunal had regard to any of the information in the Letter, other than its assertion that the appellant was employed by an electrical engineering company. However, in respect of that evidence, the Tribunal accepted the evidence of the appellant that he had been employed as a mechanic/welder in China. In those circumstances, that information in the Letter could not have been part of the Tribunal's reasons for affirming the decision under review, and therefore did not enliven s 424A of the Act. 18 Her Honour said on this topic (at [41]-[48]): 41. Counsel for the Applicant submitted that it is not only at the time of the reasons that one can infer whether or not the information alleged to enliven s.424A of the Act. In support of his submission, Mr Nair referred the Court to SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 where Gleeson CJ. Gummow, Callinan, Heydon and Crennan JJ said at [17] that the operation of s.424A(1) is to be determined in advance and independently of the Tribunal's particular reasoning on the facts of the case. 42. Counsel for the Applicant referred to SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721 ("SZLPJ"). In SZLPJ, Perram J at [16] held that the tribunal's statement as to its present state of mind when it delivered its reasons was sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time. In SZLPJ, whilst the tribunal referred to information that had the potential to be adverse to the applicant, the tribunal stated that "the Tribunal has not in any way used this issue adversely to the applicants" (at [13]). Perram J stated at [16] as follows: "[16] The Minister submitted that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 meant that the anterior time is not a single point in time, but in effect is all times which existed up until the moment of the Tribunal's reasoning process. That may well be so. Ultimately the question is, what inferences can be drawn from the material which was available to the Tribunal. Here, it seems to me to be reasonable to draw the inference that the Tribunal did not at that earlier time or those earlier times, consider that the separate application would be the reason or a part of its reason for affirming the decision that is under review. That is, I accept that the statement about the Tribunal's present state of mind made when it delivered its reasons is sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time." 43. In SZLJF v Minister for Immigration and Citizenship [2009] FCA 158 ("SZLJF"), Logan J cited Perram J's comments at [16] in SZLPJ with approval. In SZLJF, the tribunal made a similar comment as in SZLPJ. It said that "the tribunal has not in any ways used this matter in an adverse manner to the applicant. The tribunal has assessed the applicant's claims and evidence on their own merit". 44. True it is in the case before this Court the Tribunal has not used such helpful and explicit words to support an inference that the information in the Letter was not part of its reasons for affirming the decision under review. 45. However, whilst I have serious doubts about whether the information in the Letter in fact had the potential to be adverse to the Applicant and undermine his claims, even if it were, a fair reading of the Tribunal's decision record does not suggest that the Tribunal had regard to any of the information in the Letter, other than its assertion that the Applicant was employed by an electrical engineering company. However, in respect of that evidence, the Tribunal preferred the evidence of the Applicant that he had been employed as a mechanic/welder in China. In those circumstances, that information in the Letter cannot have been part the Tribunal's reasons for affirming the decision under review. 46. Further, to the extent that the Letter stated that the Applicant's employer was paying for his travel to Australia, a fair reading of the Tribunal's decision record suggests that the Tribunal accepted the Applicant's evidence that he had paid a very large sum of money to leave China. To that end, that information in the Letter that the electrical engineering company had paid for his letter was not part of the Tribunal's reasons for affirming the decision under review. 47. Otherwise, there was no information in the Letter to which the Tribunal referred that was capable of undermining the Applicant's claims to fear persecution in China by reason of being a Falun Gong practitioner. 48. In the circumstances, there was no information before the Tribunal that enlivened the obligations of s.424A(1) of the Act 19 Having found no jurisdictional error in the decision of the Tribunal, her Honour dismissed the application.

GROUNDS OF APPEAL 20 The current notice of appeal mirrors but supplements the ground raised before the Federal Magistrates Court. That is: Ground 1: Her Honour the Federal Magistrate erred in not finding that the second respondent ("the Tribunal") made a jurisdictional error in that the Tribunal denied the applicant natural justice and procedural fairness pursuant to section 424A of the Migration Act 1958. Particulars: i) The Tribunal received information through a letter contained in the file of the Department of Immigration and Citizenship. This letter was from a travel agency in China reporting on the circumstances as to why the applicant traveled to Australia, how the applicant obtained a visa and paid for it, and how the applicant paid for his travel. ii) The information in the letter was clearly capable of undermining the applicant's claim to have fled China and to have borrowed a large sum of money to be able to so flee, because of his persecution for reason of being a Falun Gong practitioner. iii) This was information caught by section 424A. iv) The Tribunal did not exercise its discretion under section 424AA. v) The Tribunal did not act in accordance with section 424A. vi) Her Honour erred in not determining whether or not this information had the potential to be adverse to the applicant. vii) Her Honour erred in not finding that this information was capable of undermining the applicant's claim to be owed protection obligations by Australia. viii) Her Honour erred in not finding that the Tribunal breached s.424A of the Migration Act 1958. (emphasis added)

SUBMISSIONS ON APPEAL 21 Mr Nair, once again pro bono counsel for the appellant submits that her Honour has erred in three ways. First, he says her Honour misconstrued and misapplied the relevant law. Rather than determining whether the information in the Letter had the potential to undermine the appellant's case, her Honour determined that s 424A was not enlivened because the Tribunal had not in fact used this information adversely against the appellant, accepting instead the explanation and contrary information offered by the appellant. Secondly, her Honour erred in not determining that the information was adverse to the appellant's claims. Thirdly, her Honour erred in not finding that the appellant had been denied natural justice or procedural fairness as provided for by s 424A of the Act. 22 The appellant submits that the Letter from the travel agency was information about the circumstances in which the appellant obtained a visa and about who paid for the visa for the appellant's travel to Australia. The appellant says that the Letter also contained information that the appellant had a 'special kind of relationship' with his employer and there were 'almost no possibilities that [the appellant would] abscond in Australia under this kind of situation'. It is submitted that this information constituted 'a rejection, denial or undermining' of the appellant's claims to be a person to whom Australia owed protection visa obligations. Therefore, the appellant contends that the information contained in the Letter was information caught by s 424A of the Act. 23 At the hearing of the appeal before me, the principal area of focus raised by counsel for the appellant was that, not only had there been no express disavowal of reliance upon the 17 April 2008 Letter by the Tribunal but that its content was so potentially relevant to the substantive Convention claim (as distinct from issues of credit) that it would have to fall within s 424A of the Act. The reason the assertion was advanced was because the Letter described a comfortable employment circumstance in China under which the employer had sponsored the appellant's trip to Australia. Such a circumstance, it was argued, was necessarily fundamentally at odds with the persecution in China said to be suffered by the appellant by reason of his Falun Gong adherence. 24 The appellant argues that in circumstances where information was directly relevant to the fundamental claim, no conclusion could be reached other than that the Tribunal must have considered that it would rely on the content of the Letter.

ANALYSIS 25 Section 424A of the Act requires that particulars of information personal to the applicant or another person must be disclosed to the applicant in writing if that information is the reason or part of the reason for affirming the decision under review. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [23] Finn and Stone JJ identified two relevant requirements contained in s 424A(1)(a). First, the Tribunal must possess 'information' and second, the Tribunal must consider that the information 'would be the reason, or part of the reason' for affirming the decision under review. 26 In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [215] the Full Court held that disclosure must be made where the information concerned is only part of the reason for such affirmation. 27 Before her Honour and before this Court, the respondent conceded that the Tribunal did not give the information in the Letter to the appellant either in writing or in accordance with s 424AA of the Act. However, the respondent contended that the information was not information that undermined, rejected or denied the appellant's claims to be a person to whom Australia owed protection visa obligations and was, therefore, not part of the Tribunal's reasons for affirming the decision under review. Accordingly, the respondent argued that the obligations contained in s 424A of the Act were not enlivened. 28 The Federal Magistrate found that a fair reading of the Tribunal's decision record did not suggest that the Tribunal had regard to any of the information in the Letter, other than the assertion that the appellant was employed by an electrical engineering company. However, in relation to that evidence, the Tribunal gave the appellant the benefit of the doubt and accepted his claim that he was employed as a mechanic or welder in China. The Federal Magistrate also considered the information in the Letter that the appellant's employer was paying for his travel to Australia. Her Honour found that a fair reading of the Tribunal's decision record suggested that the Tribunal accepted the appellant's evidence that he himself had paid a very large sum of money to leave China. In those circumstances, her Honour held that the information contained in the Letter was not part of the Tribunal's reasons for affirming the decision under review and the obligations under s 424A of the Act were not enlivened. 29 In SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890, Siopis J observed at [36]: It follows that it is the relationship which the information in question has to the content of the Convention claim made by the applicant before the Tribunal that is a significant consideration in determining whether it is information in respect of which s 424A(1) applies. Further, the assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information. Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information, although, in my view, that may be a relevant consideration in drawing inferences as to the proper characterisation of the information (emphasis added). 30 In the present case, the appellant's credibility would appear to have been the primary reason for the Tribunal finding that it was not satisfied as to the appellant's claims of persecution. The Tribunal noted at [77] of its decision record, the fact that the appellant had provided false information in applying for a visa to come to Australia was a significant reason for this credibility finding. The Tribunal stated: My doubts as to the credibility of the Applicant's claims are reinforced by the false information he provided in applying for his visa for Australia. This included giving fictitious names and dates of birth for his wife and children and fictitious details about his employer. On the latter point I am prepared to give him the benefit of the doubt by accepting that he was employed as a mechanic/welder by a company named Xin Yun Mechanic as he now claims, even though there is significant information to suggest that he was in fact employed by a company named Henan Shangdian Electric Engineering Co. Ltd. 31 As Siopis J in SZMFZ noted (at [36]), an assessment of whether or not s 424A is enlivened is not dependent upon the use that the Tribunal subsequently makes of the information. That use, however, may be a relevant consideration in drawing inferences as to the proper characterisation of the information. 32 In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 in the joint judgment (at [17]) it was held that the assessment called for by s 424A(1)(a) needs to be based on the assessment of the impugned information in advance and independently of the Tribunal's decision-making process. However, it is argued for the Minister that this does not mean, as now contended for by the appellant, that the obligation under s 424A is enlivened where the impugned information simply was 'clearly capable of' or has 'the potential' to be adverse to an appellant's claims. There may often be potentially adverse content in a document which the Tribunal considers to be totally unreliable. It cannot be obliged under the statutory obligations to put such information to the applicant when it has already concluded that the adverse information is completely unreliable. 33 It may be a fine balance but there can be little doubt that the obligation under the section turns on the Tribunal reaching a preliminary view of some sort. This is because the language in s 424A(1)(a) emphasises the need for the Tribunal to consider that the impugned information would be the reason or part of the reason for affirming a decision under review. If the Tribunal does consider that this threshold is established then it is obliged to give the requisite opportunity that the section affords. As observed in SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 (at [33]), '[t]he test for the purposes of s 4242A [sic-s 424A] is not based upon whether the material in question suggests a particular decision. The test depends upon the Tribunal's "consideration"'. 34 This process then requires the Tribunal to consider the question in advance of its ultimate decision, considering the information upon which it would act should it decide to affirm the relevant decision. 35 It is not the role of the Court to substitute its consideration for the consideration to be undertaken by the Tribunal. The obligation of the Tribunal is an obligation which occurs at a point in time anterior to the final decision process. From one practical perspective, new material may be received after the original hearing but before a decision is made. If a 'consideration' based on the new material is formed within the meaning of the Act prior to the ultimate decision, the obligation under the Act to afford an opportunity to respond to the material must be afforded. 36 In SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721, it was held that the Tribunal's state of mind when delivering its reasons was sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time (at [16]). That reasoning was followed in SZLJF v Minister for Immigration and Citizenship [2009] FCA 158 (at [18]). Of course that process is easier in circumstances such as SZLPJ and SZLJF where there is an express disavowal of reliance on the impugned information together with other information on which the decision reached could logically be supported. The question arising in the present appeal is whether or not, notwithstanding an absence of expressed disavowal of reliance, it could still be concluded, as her Honour did, on a fair reading of the Tribunal's decision record that the Tribunal did not consider the impugned information would be part of the Tribunal's reasons for affirming the decision under review. 37 As part of that analysis, it is noted that the information contained in the Letter could not on its terms amount to a 'rejection, denial or undermining' of the appellant's claims. The only 'claim' that the alleged 'information' is said to have undermined was the claim that the appellant had 'paid a large sum of money for his passport and his trip to Australia'. That, however, goes to a question of credibility. The assertion that he paid for his passport and trip to Australia was neutral to any Convention related persecution advanced by the appellant. That is, even if the Convention claim were bona fide, he may, in any event, have had to borrow a large amount of money to travel. While the content of the Letter could go to the credit of the appellant, it does not go to any Convention related persecution. 38 The first respondent has suggested that delivery of these reasons and the judgment should await the outcome of the reserved decision of the High Court of Australia in Minister for Immigration and Citizenship v SZLFX [2009] HCA Trans 102. The appellant does not oppose that course. This decision has now been delivered by the High Court (Minister for Immigration and Citizenship v SZLFX (2009) 258 ALR 448). The decision supports the conclusion reached above. In SZLFX, the Tribunal had obtained information from a third party and recorded that in a file note. The refugee applicant was not given notice of the information. However the information was not expressly referred to in the Tribunal's decision record, that is, it was not a case where there had been an express disavowal of the impugned information as with the cases discussed above (for example, Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (at [12])). Despite the absence of any express reference in the Tribunal's decision record, the refugee applicant submitted that the file note contained information that amounted to an undermining of the applicant's claims (at [16]-[18]). This argument was rejected in the High Court. The High Court concluded that there was no evidence or necessary inference that the Tribunal had considered or held any opinion about the information contained in the file note (at [24]). Once again, the High Court emphasised that s 424A spoke of information that 'would', not 'could' be the reason or part of the reason to affirm the decision under review (at [25]). 39 As with this case, the Tribunal in SZLFX had disbelieved the applicant's claims for other reasons based on adverse credibility findings. The only properly available inference, therefore, was that the Tribunal did not consider the contents of the file note to be the reason or part of the reason for affirming the decision under review (SZLFX at [26]). 40 Consistently with that approach, I cannot accept that the obligation under s 424A is enlivened upon information being 'potentially' adverse to an applicant's claims or having the capacity to be adverse. It follows that no obligation arose to provide particulars to the appellant of the information contained in the Letter relating to his alleged employment by a company which in turn had funded his trip to Australia. There is nothing in the decision of the Tribunal (notwithstanding no express disavowal) which suggests that it did rely upon or have regard to that evidence. There is, therefore, adopting the approach taken in SZLFX, no evidence or necessary inference that the Tribunal had considered or held any opinion about the employer funding the trip. Nor, as I have previously expressed, as a matter of logic, is there necessarily an inconsistency between funds being borrowed from the employer or provided by the employer and funds being borrowed generally for the trip. 41 Rather, the reasons for rejecting the appellant's application were on much broader and detailed adverse credibility grounds.

DISCRETION 42 The Minister also contends that, in any event, even if there was a technical breach of s 424A, discretionary relief should be refused on the basis that the appellant did not suffer any substantial injustice; the Tribunal was prepared to give the appellant the benefit of the doubt regarding the information in question: see SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84; SZJSP v Minister for Immigration and Citizenship [2007] FCA 1925 at [29]; SZLYR v Minister for Immigration & Anor [2008] FMCA 1322 at [52]. 43 As I do not consider any breach has been established, consideration of this submission is unnecessary.

CONCLUSION 44 In my opinion, the approach of the Federal Magistrate and her Honour's conclusion were correct. 45 The appeal will be dismissed. The appellant is to pay the first respondent's costs of the appeal, to be taxed if not agreed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 23 October 2009 Pro Bono Counsel for the Appellant: R Nair