SZNTO v Minister for Immigration and Citizenship

FEDERAL MAGISTRATES COURT 6 By application filed in the Federal Magistrates Court on 21 July 2009, the appellant sought judicial review of the Tribunal's decision. In an amended application filed on 11 November 2009, the appellant relied on two grounds. First, 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 give the appellant an opportunity to give evidence and present arguments as to the form that his proselytising may take were he to return to China (that being, on the appellant's case, an "issue" in the review) and why that may lead to him being persecuted. Secondly, the appellant claimed that the Tribunal failed to comply with s 430(1)(d) of the Act in the preparation of its written statement recording its decision. 7 The Federal Magistrates Court rejected both grounds. Having found no jurisdictional error in the Tribunal's decision and no failure to comply with s 430(1)(d) of the Act, the Federal Magistrates Court dismissed the application, with costs.

APPEAL TO THIS COURT 8 On 16 December 2009 the appellant filed a notice of appeal in this court. The grounds of appeal are as follows: 1. The Court erred in finding that the second respondent (the Tribunal) complied with s 425 of the Migration Act. Particulars a) Error in finding that the issue upon which the second respondent decided the appellant's case before it was raised by the Appellant. b) Error in finding that the issue upon which the second respondent decided the appellant's case before it was disclosed to the Appellant. 2. The Court should have found that, a) The appellant, when asked why he would be persecuted upon return to China, stated that he would evangelise. b) The Tribunal did disclose to him that the result of his case would rest on the way that he intended to evangelise. c) The way that the appellant intended to evangelise was an issue that the Tribunal did not disclose to the appellant, and therefore, d) The Tribunal was in breach of s 425 of the Migration Act. 9 It can be seen from the grounds of appeal that the issue that arises in this appeal concerns the rejection by the Federal Magistrates Court of the first ground of the application before it. There is no appeal based on the rejection by the Federal Magistrates Court of the second ground of the application relating to the alleged non-compliance of the Tribunal's written statement with s 430(1)(d) of the Act.

CONSIDERATION 10 Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of "the natural justice hearing rule" in relation to an application for review by the Tribunal: s 422B(1). The statement of the requirements is provided by ss 423 to 429A of the Act. In applying the Division there is an over-arching obligation on the Tribunal to act in a way that is fair and just: s 422B(3). Subject to certain qualifications, s 425(1) obliges the Tribunal to invite the applicant to appear before the Tribunal and to give evidence and present arguments "relating to the issues arising in relation to the decision under review". The sole question in this appeal is whether the Federal Magistrates Court was correct in deciding that, in the circumstances of this case, the Tribunal complied with that duty. 11 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 the High Court held that the Tribunal, in that case, had not complied with s 425(1) of the Act in circumstances where the Tribunal did not give an applicant for a protection visa a sufficient opportunity to give evidence, or to make submissions, about what turned out to be two of three determinative issues arising in relation to the decision under review. In that case the applicant had identified, in a statutory declaration, three events which were elements of his claim to have a well-founded fear of persecution. The delegate dealt directly with one of those elements but not with the other two. In the end result, the delegate was not satisfied that the applicant had "a genuine commitment to Christianity" and refused to grant him a protection visa. When the decision came before the Tribunal for review, the applicant supplied a further statutory declaration that was directed wholly to demonstrating his commitment to Christianity. The High Court said that this was unsurprising, given the basis on which the delegate had refused the application: the delegate had not based his decision on either of the other two elements and there was nothing in the delegate's reasons that indicated that those elements were in issue. However, in its review, the Tribunal considered each of the three elements to the claim and rejected all of them. In so doing, it did not indicate to the applicant that the two other elements (which the delegate had apparently accepted) were live issues and under review. The High Court held at [43] that, based on what the delegate had decided, the applicant would, and should, have understood that the central and determinative question on the review was the nature and extent of his Christian commitment, and nothing more. 12 In carrying out its analysis of the legal requirements imposed by s 425(1) of the Act in relation to the case before it, the High Court in [33] to [36] made the following observations, amongst others: (a) The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. (b) The Tribunal is not confined to issues that the delegate considered. (c) The issues that arise in relation to a decision are to be identified by the Tribunal. (d) The starting point for the identification of the issues will usually be the delegate's reasons for the decision under review. (e) Therefore, unless the Tribunal identifies some additional issues, the issues arising on the review by the Tribunal will be those which the delegate identified as determinative against the applicant. (f) Accordingly, unless the Tribunal informs the applicant differently, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify "the issues arising in relation to the decision". 13 The analysis undertaken by the High Court in SZBEL makes clear that, in determining whether the obligation imposed by s 425(1) of the Act has been complied with, attention should be directed to the particular facts of the review process undertaken by the Tribunal: see also Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [51]. Those facts will reveal what were "the issues arising in relation to the decision under review" and whether that part of "the natural justice hearing rule" as required by s 425(1) has been complied with. In the present case, therefore, the starting point must be the circumstances relating to the decision under review. 14 In his application for a protection visa the appellant said that he was a genuine Falun Gong practitioner who had been tortured by his government. He said that he had been illegally detained in the Shandong Detention Centre on a number of occasions for significant periods of time and that on two occasions money had been extorted from him. The first occasion was by an officer from the Shandong Liaison Office in Beijing and the second occasion was by the police. During one four-month period of detention in the Shandong Detention Centre he said that he was put in shackles and handcuffs for practising Falun Gong exercises and that the shackles had injured his ankles badly. He said that he would be put in gaol again if he stayed in China. He said that he had bribed a powerful police officer to help him come to Australia. He said that he wanted to "exercise Falun Gong without any restriction". 15 The appellant attended an interview at the Department in relation to his application. He was asked questions about his practice of Falun Gong in China, his knowledge of the principles of Falun Gong, his practice of Falun Gong in Australia, his claims to have been detained and tortured, and his departure from China. The substance of his responses was recorded in the delegate's written reasons. For the reasons given in the decision, the delegate did not accept that the appellant was a genuine Falun Gong practitioner or that the appellant was, on account of his Falun Gong beliefs and practice, arrested and detained as he had claimed. Furthermore, the delegate did not accept that the appellant bribed a powerful police officer who helped the appellant depart from China. 16 The delegate made this finding: The applicant has not substantiated a claim that he was persecuted on account of his Falun Gong practice and beliefs. On the basis of the applicant's claims and evidence regarding his practice of Falun Gong in China, I am not satisfied that there is a real chance that he would face systematic and discriminatory conduct due to his claimed support of Falun Gong on his return to China in the reasonably foreseeable future. I am also not satisfied that he was subject to, or would be subject to persecution in China for the Convention-based reason of religion or any other Convention-related reason. Therefore, I find that his fear of Convention-based persecutory harm in China is neither genuine nor well founded. 17 The delegate concluded by finding that there was not a real chance of the appellant suffering persecution for a Convention reason in the reasonably foreseeable future and that the appellant's fear of persecution was not well-founded. 18 When the decision came before the Tribunal for review, the appellant retracted the statements he had made concerning his practice of Falun Gong, his detention and extortion, and his bribery of a powerful police officer. A transcript of the hearing before the Tribunal (obtained from an audio recording of that hearing) was tendered in evidence in the proceeding for judicial review before the Federal Magistrates Court. I was taken to a number of passages from the transcript. What follows is a summary of presently relevant parts of the transcript. 19 After making some introductory remarks concerning the Tribunal and the nature of the hearing that it was conducting, the appellant was asked to tell the Tribunal, in his own words, why he feared persecution in China. The appellant's response was as follows: Respectful Member, today I came with a very sad mood and full of regret. After I came to Australia, I joined Lakemba English Church and because I wasn't able to understand English, so through a friend's introduction I joined the Hillsong church in Chatswood and practise there. After the practise I became aware of the, all the information about Falun Gong which was provided to the department officer were all lies and I felt very upset. Because at the beginning when I first came to Australia there was a lawyer who gave me this idea and prepared all those material for me. So today when I have this chance to talk to you, Member, I want to clarify all these facts. 20 The hearing continued with the appellant giving information about how he came to leave China as well as information about his family situation and financial circumstances. He said that, after he joined the Hillsong Church, he "became a brand new person". He said: I always feel grateful and sorry for the things and I promise that I will spend my whole life passing the message, the gospels to other people. He also said: I'm now a faithful Christian. I'm worried if I return to China as China has no democracy, I'm worried Chinese government would persecute… 21 When asked why, in his interview with the Department, he did not say the things he was now telling the Tribunal, the appellant said that a lawyer "wrote the material for me" and told the appellant that he "would make me into a refugee". He said that he was told by the lawyer that "if I don't say, claim on the basis of Falun Gong it wouldn't work". 22 After being asked further questions, the appellant said: Before I came I talked to my lawyer and I told the lawyer I have to tell the truth in order for my soul to be freed, but the lawyer asked me not to reveal his name so I apologise for it. The Tribunal replied: That's alright. I accept that you have told the truth this morning. 23 After explaining that the function of the Tribunal was to make decisions on refugee matters (referring back to other statements made by the appellant concerning his family situation and financial circumstances, including his need to work in Australia to support his family in China), the Tribunal said: But the only decision I can make is whether or not you have a well-founded fear of persecution for one of the reasons I mentioned or not. So I'll ask you directly, do you believe there is any reason why if you were to return to China you would be persecuted? The appellant said: If I go back I will evangelise and 'cause in China there is no democracy. Chinese government, regardless of what kind of religion you are in, if the power of certain religion is getting big, then the government will be, will be alert and scared. As the people who does evangelising in China increases, there will be more conflict between these people and government and the government will end up suppressing them. 24 Later when the appellant was asked whether there was anything else the Tribunal should know before the hearing finished, the appellant replied that he would support himself in Australia without requiring payment from the government and that he would contribute to society. In response to that specific matter the Tribunal replied as follows: Thank you. I accept what you say there. It's just that the basis on which I have to make a decision is exclusively whether or not I accept that you would be persecuted if you went back to China. That's the only question that I am allowed to answer. I'm going to call a hearing officer now to close the hearing formally. 25 It can be seen from the quotation in paragraph 23 above that the reasons advanced by the appellant for his fear of persecution can be summarised as follows: first, if he went back to China, he would evangelise; secondly, an increase in the number of people evangelising in China would be a matter of concern for the Chinese government; thirdly, such an increase would cause more conflict between these people and the Chinese government; and, fourthly, the Chinese government will end up suppressing these people. 26 In its reasons, the Tribunal correctly noted in [30]: The only relevant basis for a claim to protection left standing after the hearing was the claim to fear persecution for reason of his religion, as he has in Australia been baptised as a Christian. 27 The Tribunal then made the following findings in [31] of its reasons: In light of the applicant's explanations, I am satisfied that he has adopted Christianity other than as a means to strengthen his claim to protection in Australia. However, although there is some truth in the applicant's statement that the Chinese Government appears to fear any movement which may be or become an alternative centre of power in the country (viz its treatment of Falun Gong and its practitioners), the applicant did not present any evidence that Christians are ipso facto perceived by the Chinese authorities in that way. Information available to the Tribunal does not suggest that this is the case, although certain Christian groups do suffer harassment and worse from time to time and in some parts of the country more than in others. The applicant, according to his own evidence at hearing, was not a practicing [sic] Christian in China and did not indicate to the Tribunal that the form or location of his practice were he to return would attract adverse attention from the Chinese authorities. He said he would evangelise, but did not say in what way. 28 The Tribunal then said in [32] of its reasons: The applicant's claims are at best speculative. As a result, I have no substantiated evidence before me to enable me to conclude that there is a real chance that the applicant would be persecuted for reason of his religion or for any other Convention reason should he return to China in the foreseeable future. 29 The Federal Magistrates Court noted that the claims that the appellant had made to the Tribunal were different from those made to the Department (on which the Minister's delegate had made the decision to refuse to grant a protection visa to the appellant). The Federal Magistrates Court also noted that the appellant's claimed intention to involve himself in evangelism, were he to return to China, was an issue that the appellant himself had raised for the first time as part of the Tribunal review proceedings. Thus, the Federal Magistrates Court reasoned, the Tribunal had no duty under s 425 to identify the potential determinative significance of this claim to the appellant. The Federal Magistrates Court also held that the significance of the appellant's evangelism, and whether it would bring him to the adverse attention of the Chinese authorities, were made plain during the course of the Tribunal hearing. For these reasons the Federal Magistrates Court rejected the first ground of the appellant's application before it. 30 The appellant submitted that the Federal Magistrates Court had erred in so reasoning. He submitted that there was a distinction between whether proselytising in itself would lead to persecution and whether the form or location of these activities would lead to persecution. He submitted that, when regard was had to the Tribunal's decision, the "manner and form" of the appellant's intended proselytising were facts decisive of the application for review. He submitted that the Tribunal decision "rested on that fact". This made these matters "issues arising in relation to the decision under review" for the purpose of s 425(1) of the Act and these "issues" were not disclosed to, and could not have been anticipated by, the appellant. To put the matter bluntly, the appellant submitted that the Federal Magistrates Court "missed the point". 31 In my view these submissions should be rejected. They focus too intently on one part of the Tribunal's statement of reasons and, in so doing, give that part a significance which it does not truly have when considered with the balance of the Tribunal's reasons. The effect of this focus is to subvert what the Tribunal was saying. 32 Specifically, the statements in [31] of the Tribunal's reasons that the appellant did not indicate that the form or location of his Christian practice would attract adverse attention from the Chinese authorities and that he did not say how he would evangelise, cannot be divorced from a reading of the whole of paragraphs [30] to [32] of those reasons. Properly read, those paragraphs (including the two identified statements) refer, correctly, to the generality of the appellant's evidence, absent more specific details which might, if given, substantiate a well-founded fear of persecution on religious grounds. It was this generality in the matters which the appellant had put before the Tribunal that led the Tribunal to characterise the appellant's claims as being, at best, speculative. As a result, the Tribunal concluded that it had no substantiated evidence before it which would enable it to find that there was a real chance that the appellant would be persecuted by reason of his religion (or any other Convention reason) should he return to China in the foreseeable future. 33 In my view it is a misreading of the Tribunal's reasons to say that the manner and form of the appellant's intended proselytising were facts that were decisive of the application for review. What was decisive was the fact that the claims, as made by the appellant, were general in nature and, according to the Tribunal, at best, speculative. 34 In an alternative form of the appellant's submission, it was put that the Tribunal's thought processes resulted in "a new way of looking at the case" or "a slightly different way of looking at the case", which should have been put to the appellant. The immediate difficulty confronting the submission in that form is that, on a proper reading of the Tribunal's reasons, the Tribunal did not engage in a new or slightly different way of looking at the case. The Tribunal was doing no more than evaluating the scope and probative value of the material that had been placed before it by the appellant. The submission in this alternative form is tantamount to saying that it was incumbent on the Tribunal to submit its reasoning processes to the appellant, before it reached a final decision. The Tribunal was under no such obligation: SZBEL at [48] citing with approval F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369. It was for the appellant to advance whatever evidence or argument he wished to put before the Tribunal in support of his contention that he had a well-founded fear of persecution: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187]. Beyond the requirements set out in the other provisions of Division 4 of Part 7 of the Act, s 425 does not require the Tribunal actively to assist an applicant to put his or her case or to carry out an inquiry to identify what the case might be: Hussein v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 297 at [38]; Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 at [37]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [200]. 35 The facts in this appeal are quite different from the facts in SZBEL. Here, unlike the applicant is SZBEL, the appellant retracted the facts that were placed before the Minister's delegate as the reason for his claimed fear of persecution and presented the Tribunal with completely new and different facts. The Tribunal evaluated the facts that had been placed before it by the appellant. No new issue arose for the purposes of s 425(1) of the Act because the Tribunal reasoned that those facts were insufficient to enable it to make a positive determination that there was a real chance that the appellant would suffer persecution. The statements in [31] of the Tribunal's reasons, on which the appellant relies, are no more than elaborations of why the material that had been placed before the Tribunal by the appellant was, at best, speculative. 36 No breach by the Tribunal of its obligation under s 425 of the Act has been disclosed. No error has been identified in the findings of the Federal Magistrates Court that are under appeal. It follows that the appeal should be dismissed. Costs should follow the event. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.