SZNKR v Minister for Immigration and Citizenship

The first tribunal hearing 5 The tribunal affirmed the delegate's decision in March 2009. During the course of the tribunal's conduct of the review leading up to that decision it had interviewed Mr B in Bangladesh on the telephone while the appellant was present at that hearing. 6 In July 2009 that decision of the tribunal was set aside by a consent order made by the Federal Magistrates Court. That order noted that the Minister accepted that the tribunal had committed a jurisdictional error by its failure to comply with s 424A(1) of the Act in relation to information obtained from Mr B.

The second tribunal hearing 7 The tribunal was reconstituted for the purposes of continuing the conduct of the review. Its decision is the subject of the present appeal. During the course of the second hearing, the member raised with the appellant matters going to each of the grounds of the appeal. 8 First, the member put directly to the appellant that it was necessary for her to consider why he had been going to church in Australia, because the law required her to disregard his conduct here if, in effect, she considered that it had only been done in order to assist his refugee claim. When the member put this to the appellant, he vigorously rejected it. He referred to his own evidence and written evidence in support of his practice of the Christian religion in Australia provided to the tribunal by other persons at his church in Randwick. He invited the tribunal to speak to those people or to gather further evidence from them. 9 Secondly, the tribunal put directly to the appellant that it had listened to the recording of the first tribunal's telephone discussion with Mr B. The tribunal member said that she had information given by Mr B to the first member, that the appellant had never studied computers with him. She explained to him that this information was relevant to his application because it indicated to the tribunal that he did not convert at Mr B's instigation to Christianity from Islam, as he had claimed, while he undertook computer studies with Mr B. 10 The second member said that in the recording of when the first tribunal member made the telephone call, Mr B, appeared to be less than familiar with the appellant and Mr B was possibly confused about who the person (being the appellant) the member was questioning Mr B about was. The appellant responded in his evidence to the second tribunal during the hearing. He accepted that Mr B did not sound as if he was very familiar with the person whom the first tribunal was asking about. The appellant's explanation to the second tribunal was that Mr B was confused and had not heard the appellant's full name. He told the member that therefore Mr B was unable to recognise his name or speak about him. 11 The appellant told the second tribunal member that the first member had not given him the opportunity to speak directly to Mr B on the telephone during the course of the earlier hearing in order that he could properly identify himself to Mr B. At the end of the last hearing, the tribunal member said that she would probably not call Mr B again because of the first tribunal's interview with him, but that if she changed her mind she would recall the appellant to a further hearing in the tribunal. The appellant again asserted that if Mr B had really not identified him properly as the person to whom the first member referred when he had given his responses to the first tribunal, then he (the appellant) would be denied the benefit of Mr B's evidence. 12 The second tribunal member replied that she considered that the first tribunal had probably identified the appellant to Mr B using his full name. She said that she would listen again, to that part of the recording where the appellant's name had been given to Mr B. She said that her current impression was that the appellant's full name had been given to Mr B and that therefore, there was no likelihood of him being confused, but if there was doubt about that, then she said that she would telephone Mr B again. The appellant reiterated that the second member should realise that Mr B was confused and therefore, unable to give proper information about him.

The second tribunal's decision 13 The second tribunal accepted the evidence of the appellant's attendance at church in Sydney and the fact that members of the congregation there regarded him as a genuine Christian. But it said that, although those persons may have believed that the appellant had made the conversion to Christianity from Islam, and had been harmed for that reason in Bangladesh, he had not claimed that any of the persons had gained that knowledge other than from listening to him. The second tribunal said, that for that reason, it had not thought it necessary to interview those persons since the appellant had been their only source of information as to his conduct in Bangladesh. 14 The second tribunal found that the appellant's claim that he converted to Christianity in Bangladesh was not plausible. It said that his claims related solely to the consequences for him in Bangladesh of a perception that he had converted from Islam to Christianity. 15 Critically, the tribunal said that it needed to address the appellant's claim in relation to his activities in Australia, having regard to s 91R(3). That provided, relevantly: "For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol." 16 The tribunal concluded: "As I do not accept that [the appellant] was a genuine convert from Islam to Christianity before his arrival in Australia, I am not satisfied that he has attended church in Australia for any reason other than for the purpose of strengthening his claim to be a refugee and therefore, disregard it." 17 It also found that the chance was remote that he would face any serious harm in Bangladesh because of the perception that he had converted. It concluded by deciding to affirm the delegate's decision to refuse the appellant a protection visa.

The proceedings before the trial judge 18 The appellant was represented both before his Honour and on appeal. The appellant gave no evidence before the Federal Magistrates Court of what, if any, further steps he could or would have taken had he had any opportunities he claimed were denied him by the alleged jurisdictional errors. He argued before the trial judge and on appeal that the tribunal had not applied s 91R(3)(b) correctly in its treatment of his activities in Australia. He argued that the tribunal had never put directly to him that if it did not believe that he was a Christian, or perceived to be a Christian, in Bangladesh, it could find, as it had, that it would disregard his claim of practising Christianity in Australia. The appellant argued that the reasoning of the tribunal revealed that it had disregarded all of his conduct in Australia simply because it did not accept that prior to his arrival in Australia he had converted from Islam to Christianity. He contended that the tribunal was required to determine his motive for his conduct in Australia and that the way in which the tribunal had reasoned would lead to the conclusion that no sur place claims could ever succeed. 19 The trial judge rejected that argument saying that it had been made with an eye attuned to error and was based on a very narrow reading of the tribunal's decision. He said that the tribunal's conclusion that the appellant had not come to Australia as a Christian was both logical and reasonable. He found that because of that conclusion the tribunal was entitled to form the view it did under s 91R(3). 20 The trial judge also rejected the second asserted jurisdictional error on the ground that the tribunal neither had to prepare a transcript nor allow the appellant to listen, together with the tribunal, to the recording of the interview with Mr B.

Consideration 21 Following his Honour's decision the High Court allowed the appeal in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642. There, Crennan and Kiefel JJ (with whom the Chief Justice and Bell J agreed; see 238 CLR 654 [13]) said (SZJGV 238 CLR 668 [61]): "Paragraph (b) of sub-s (3) is not expressed in terms which require a decision-maker to state a conclusion as to the person's motive or motives, only whether the decision-maker is satisfied that the person had a motive for the conduct in addition to that to strengthen the claim. Regardless of the conclusion stated, because the person's sole purpose is the point of reference, the decision-maker will necessarily determine whether the person had only one motive, that to which para (b) refers. And if the decision-maker is not satisfied by the explanation given for the conduct, the decision-maker will have determined that the person's only motive was the strengthening of the person's claim." 22 Earlier, Crennan and Kiefel JJ had said that where a person had more than one reason for engaging in the conduct in Australia, they would satisfy the requirement of the proviso in s 91R(3)(b) (238 CLR 667 [60]; French CJ and Bell J concurring at 654 [13]). They said that such a situation could arise where a person satisfied the decision-maker that conduct was undertaken in Australia in order to continue the practice of their religion. 23 The tribunal's reasoning proceeded simply on the premise that, having rejected the appellant's claim to have converted to Christianity from Islam at all while he was in Bangladesh, the appellant had not satisfied it that his conduct in Australia was done other than for the purpose of strengthening his claim to be a refugee. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], in relation to a finding as to whether an applicant for review should be believed on his claim: "A finding on credibility is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why the particular witness was not believed. The tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for disbelief is apparent in this case from the use of the word 'quite implausible'. This belief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged." 24 Here the second tribunal gave detailed reasons as to why it had rejected the appellant's claim to have converted from Islam to Christianity. No complaint was taken with those reasons. Having reached the finding that he was therefore not a genuine convert to Christianity on his arrival in Australia, the tribunal was entitled to find that the appellant had not satisfied it that his conduct in Australia was undertaken for any reason other than for the purpose of strengthening his claim to be a refugee. And, so, it was entitled, and indeed bound, to disregard that conduct by force of s 91R(3). In my opinion, this ground of appeal fails. 25 The second ground of appeal was argued on the basis that during the course of the hearing the second tribunal gave the appellant an accurate summary of Mr B's earlier evidence to the first tribunal member. 26 As I understood the argument, the appellant contended that the tribunal either had a duty to play the recording to the appellant because of the lapse of time between the first tribunal member's telephoning Mr B in the appellant's presence, or provide the appellant with a transcript of the discussion in order that he could comment on it. There is no evidence that there was any transcript available to the second tribunal. Indeed, the member said that she would listen to the recording again. I infer that she said that because there was no transcript. Nor did the appellant give evidence to suggest that he was inhibited in any way from being able to respond then and there, as he did. The second tribunal had given him oral invitation, under s 424AA, that he deal with the information relating to Mr B that might be adverse to him. The tribunal member also offered him, at that time, an opportunity to respond in writing if he wished. Not only did he not take that offer up, but he was able to vigorously and immediately embark on his asserted refutation of the adverse inference that the second tribunal suggested could be drawn from Mr B's lack of recognition of the appellant. 27 In its decision, the tribunal dealt with Mr B's evidence to it. It noted that he had told the first tribunal unequivocally that he had never taught computing to the appellant. That contradicted the appellant's claims. The tribunal said that fact cast serious doubt on the plausibility of the appellant's account of the circumstances in which he decided to be a Christian. 28 The tribunal also noted that Mr B had told it that the appellant's brother had long attended the same church. It was satisfied that Mr B was referring to the same brother who was the person whom the appellant had claimed had located him at the church and assaulted him. The tribunal was satisfied that the latter claim was highly implausible. 29 Moreover, Mr B had told the first tribunal that he had written no letters to the Australian authorities in support of the appellant. The tribunal said that it was satisfied with that account and therefore did not consider the evidence of letters purporting to have been written by Mr B, that the appellant had submitted, to be reliable. No complaint was made about those findings. 30 In essence, the appellant argued that the combined effect of ss 420 and 425 of the Act was that the tribunal had to invite an applicant for review to a hearing to give evidence, and present arguments, relating to the issues arising in relation to the decision under review; that the invitation had to amount to a real opportunity to do this; and that the tribunal's hearing had to be fair. He contended that the tribunal's hearing would not be fair if it had: "The advantage of listening and re-listening to evidence given to an earlier tribunal, and expecting an applicant to respond to it without a similar opportunity." 31 First, there is no evidence that the appellant was not able to respond to the recording of Mr B's evidence to the first tribunal member. His failure to give that evidence enables an inference to be drawn that it would not have assisted his case: Jones v Dunkel (1958) 101 CLR 298. The appellant did not ask the second tribunal for any opportunity to listen to the recording. Additionally, in his engagement with the second tribunal member, he betrayed a significant familiarity with the difficulties that Mr B's earlier evidence appeared to present to his case. He sought, forcefully but not inappropriately, to argue that, because of the way in which that evidence had been given by Mr B, the tribunal should have telephoned him again so that matters could be clarified. However, the tribunal said that it would listen to the recording again in order to check whether the appellant's case, as put to it, was correct. 32 It is difficult to perceive any unfairness in that process. The appellant had an actual opportunity of persuading the second tribunal member on the very point which he now says he did not. I am unable to accept that argument. First, the procedures for the conduct of a review by the tribunal are set out in Div 4 of Pt 7 of the Act. Under s 422B, the division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Of course, s 422B(3) provides that in applying Div 4 the tribunal must act in a way that is fair and just. The appellant relies upon this to craft out of s 425 an obligation in the circumstances of this case that transcends the express obligations of the tribunal under ss 424AA and 424A. 33 I reject that argument. First, the tribunal gave the appellant the opportunity to deal orally or in writing with clear particulars of the information concerning Mr B's evidence that it considered would be the reason, or part of the reason, for affirming the decision under review. It follows that it complied with its obligation fully under s 424AA. 34 In exercising its function of review, the tribunal gave the appellant a sufficient opportunity to give evidence and make submissions on what turned out to be one of the determinative issues arising in relation to the decision under review. That is what it was required to do in this respect. The rules of natural justice do not require decision-makers to disclose what they are minded to decide so that the parties before them could have a further opportunity for criticising the decision-maker's mental processes before a final decision is reached. And as Gleeson CJ, Kirby, Hayne, Crennan and Heydon JJ pointed out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 166 [48]: "Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given." 35 There was no need for the tribunal to do anything more than it did in the circumstances of this case. The review upon which it had embarked had been initiated on the appellant's original application to it. It was entitled to have regard to all the material that had been before the first member and to take that into account in arriving at its decision, provided that it otherwise complied with the requirements of the Act. The mere fact that the first tribunal's decision was set aside did not mean that the steps and procedures taken in arriving at that decision were all invalid. As Emmett, Siopis JJ and I said in SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 at 299 [39], the tribunal still had before it the materials that were obtained when the decision that had been set aside was made. The second member clearly afforded the appellant an opportunity to address the potentially adverse information contained in the recording of Mr B's evidence given to the first tribunal member. I am not satisfied that any error has been shown in his Honour's rejection of this ground.

Conclusion 36 For these reasons, the appeal must be dismissed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.