SZNWA v Minister for Immigration and Citizenship

The Tribunal's Decision 8 At [19]-[21] of the Tribunal's Statement of Decision and Reasons (the Tribunal's Reasons), the Tribunal summarised the appellant's claims. In this section of the Tribunal's Reasons, the Tribunal set out, almost word for word, the statement which the appellant had lodged as part of her protection visa application. The Tribunal then referred to a Departmental interview which had taken place on 15 January 2009. 9 After referring to the Departmental interview, the Tribunal embarked upon a detailed summary of the evidence which had been given by the appellant and by her landlady at the Tribunal hearing which took place on 13 May 2009. This summary of that hearing is to be found at [24]-[46] of the Tribunal's Reasons. 10 At [47]-[50] of the Tribunal's Reasons, the Tribunal said: 47. I then told the applicant that I had some concerns about her application. I said it was of concern to the Tribunal that she did not have any evidence from members of her church in Australia about her attendance there. The applicant said she was in a photo with a person who was visiting from the United States.

48. I mentioned to the applicant that I found it difficult to accept that she would carry a bible from China to Australia, given her evidence that she had been detained for attending an illegal religious gathering in China. She said that bible was still at her home when she returned after her detention. She said she had been detained because the gathering took place at her home. I asked why the other persons at the gathering were detained if that was the case. She said it was because they participated. She stated that every Sunday officers patrolled the area. She said there were also posters saying that these gatherings were not allowed. They still attended the gatherings every Sunday in secrecy and at different houses. Over 20 people attended the gatherings. I mentioned to the applicant that it would look suspicious if over 20 people attended different houses every Sunday at 8.00 a.m. She said that they did not arrive at the same time and the venues were constantly changing. I asked how many venues were used. She said every sister offered her home for gatherings. There were about twenty-seven. They were all in the one town.

49. I mentioned to the applicant that her evidence about Preacher Tian having been arrested on four occasions was of concern. I mentioned to the applicant that I was of the view that had Preacher Tian been arrested, the authorities would be monitoring her very carefully and it would be very difficult for the gatherings to take place without interference from the authorities. The applicant said they still held the gatherings.

50. I asked the applicant if she would like to add anything further. She said she was too scared to return because the authorities are tightening up. She asked for protection. She said there are a lot of church activities in Australia and one has the freedom to practise one's religion. 11 The Tribunal then moved at [51] of its Reasons to deal with its conclusions. At [56] and [57] of the Tribunal's Reasons, the Tribunal said: 56. In the present case, the Tribunal is not satisfied that the applicant joined an underground church in China or that she was the victim of persecution, as claimed. The following matters lead the Tribunal to conclude that the applicant is not a reliable witness in relation to certain material aspects of her claims:

• The applicant travelled to Australia on a passport issued in her real name. She told the Tribunal that she was able to do so because she was not a key person in this matter because she was not the preacher. When asked by the Tribunal what she thought would happen if she had been the preacher, she said she would definitely be arrested and may not be released. However, it was her evidence before the Tribunal that the preacher and leader of the underground church she claimed to attend, had been arrested on 4 occasions and had been released on 3 of those occasions. When the Tribunal mentioned that to the applicant, she then stated that the preacher may have been released because she was not a murderer or a robber and the authorities would assess her case differently. The applicant claimed that even though the preacher had been arrested on three occasions she continued to hold gatherings throughout the neighbourhood. It was the applicant's evidence that every Sunday officers patrolled the area and there were posters stating that these gatherings were not allowed, yet the gatherings continued. It was the applicant's evidence that over 20 people attended the gatherings and there was no system where a person would act as a lookout to warn the members of any police presence. The Tribunal is not satisfied that any such gatherings took place. The Tribunal is of the view that such gatherings would not go unnoticed by the Chinese authorities.

• The applicant told the Tribunal that she had provided a document relating to her detention to her advisor. She claimed that the document had been forwarded to the applicant by her husband, who remains in China. She stated that the document said she had been detained because of illegal religious activities. She said the document was sent to her after her Departmental interview. This document has not been provided to the Department or to the Tribunal. The Tribunal is not satisfied that the applicant was detained, as claimed.

• The applicant claimed that the police and cadres seized bibles from her home on the day she held the gathering. She told the Tribunal that she brought her bible to Australia. The Tribunal is of the view that had the applicant been detained as claimed she would not have risked carrying her bible from China when she departed to come to Australia.

57. Overall, the Tribunal is not satisfied that the applicant practised Christianity in China. The Tribunal is not satisfied that she was detained in July 2008 or that she was ill-treated. The Tribunal is not satisfied that she fled to Wuhan and then on to Australia because she feared persecution. 12 The Tribunal also found that, if the appellant attended church in Australia as she claimed, she did so only for the purpose of strengthening her claim to be a refugee. For this reason, this conduct in Australia should be disregarded under s 91R(3) of the Migration Act 1958 (Cth) (the Act).

The Decision of the Federal Magistrate 13 The appellant sought judicial review of the Tribunal's decision. Before the Federal Magistrate, the appellant contended that the Tribunal had not accorded procedural fairness to her because it had not given her a sufficient opportunity to give evidence or make submissions directed to those matters which turned out to be the determinative issues arising in relation to the Tribunal's review. That contention was amplified by certain particulars which were said to be matters which had to be put to the appellant and which had not been put to her. The particular matters relied upon were: i. That it did not believe that the gathering of 20 people described by the Applicant took place;

ii. That it did not believe that the Applicant was detained as claimed because a particular document being a penalty notice had not been provided to the Department or the Second Respondent;

iii. That it did not believe that the Applicant was ill-treated;

iv. That it believed that if the Applicant had been detained as claimed she would not have carried her bible from China to Australia; and

v. That it did not believe that the Applicant fled to Wuhan. 14 The appellant also contended before the Federal Magistrate that the Tribunal had acted unreasonably by failing to make enquiries or by failing to seek readily available information regarding an issue that was of critical importance to the review. In amplification of this contention, the appellant argued that the Tribunal should have taken steps to ensure that the penalty notice issued to the appellant in China in respect of her organising of gatherings and which she had mentioned to the Tribunal was made available to the Tribunal. 15 In his Reasons (the Federal Magistrate's Reasons) the Federal Magistrate rejected the first ground of review on the basis that a fair reading of the transcript of the hearing before the Tribunal demonstrated that the Tribunal's statements and questions had sufficiently indicated to the appellant that everything the appellant said regarding what had occurred in China was in issue (see [105] of the Federal Magistrate's Reasons). The Federal Magistrate held that the rejection of the appellant's account that she had suffered harm in China as a consequence of her religious practice was a live issue as a result of the delegate's decision (see [109] of the Federal Magistrate's Reasons). The Federal Magistrate found that the Tribunal had given the appellant a fair opportunity to expand upon all relevant factual aspects of her claim and that she had been fairly put on notice that the entirety of her account of her claimed religious practice and subsequent detention, ill-treatment, release and consequent flight were all in issue (see [109] of the Federal Magistrate's Reasons). 16 The Federal Magistrate also dismissed the second ground of review raised before him. He held that, in the circumstances of the present case, the Tribunal was not obliged to pursue the appellant's migration agent for the penalty notice. Before the Federal Magistrate, the appellant gave evidence that she believed that the Tribunal had had a copy of the penalty notice and that she had not understood from the questions asked of her by the Tribunal member that the Tribunal did not have a copy of that penalty notice. She said that she had only become aware of the fact that the Tribunal did not have the penalty notice when the Tribunal's decision was subsequently explained to her. The Federal Magistrate did not accept the appellant's evidence before him to the effect that she had not understood that the Tribunal did not have the penalty notice (see [144] and [147] of the Federal Magistrate's Reasons). The Federal Magistrate gave detailed reasons for these conclusions at [140]-[157]. Ultimately, at [158]-[164] he said: 158 In all the circumstances, I cannot accept that the applicant did not understand that the Tribunal did not have the Penalty Notice. I say this particularly given what is clearly set out in the transcript of the Tribunal hearing.

159 I do not see that the circumstances of this case are such that the Tribunal was obliged to pursue the agent for the Penalty Notice. This is not a case such as in Prasad where the enquiries that the Minister failed to make were enquiries of his own Department, and enquiries of the applicant in that case in relation to concerns (about inconsistencies) that were known to the Minister's officers, but not the applicant.

160 In Le the Tribunal was found to be in error when it made no enquiries of the relevant officer in the Minister's Department as to a mistranslation that occurred during an interview with one of the relevant parties before the Minister's Department, and then subsequently put before the Tribunal. This was in circumstances where the report of the interview prepared by the relevant Departmental officer was "problematic" (see Le in particular at [68] to [79]).

161 The current case does not involve any such special or rare circumstances, or even "some circumstances". The applicant was asked about the Penalty Notice at the hearing. She said it was with her agent. The evidence before the Court is such that I do not accept that she did not understand that the Tribunal did not have a copy of it at the hearing.

162 Before the Court both parties focussed on the joint judgment in SZIAI. Neither party referred to the judgment of Heydon J. I found what his Honour said at [52] to be directly relevant to the current matter:

"The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he failed to achieve. The respondent had procured the certificates in the first place. Those certificates purported to be from gentlemen who knew the respondent. The respondent, it could be assumed, would know whether Mr Nuruzzaman or Mr Hossain could provide any useful information in relation to the letter of 8 January 2008. The respondent was in at least as good a position as the Tribunal to contact those gentlemen. He was represented by solicitors. Despite the letter of 8 January 2008, the respondent did not ask the Tribunal to contact either gentleman. It was not unreasonable for the Tribunal to proceed on the basis that if any further evidence was to be provided in support of the certificates, it would come from the respondent."

163 In the current case the Tribunal was clear at the hearing that it did not have any Penalty Notice before it. In these circumstances it "was not unreasonable for the Tribunal to proceed on the basis" that if the Penalty Notice was to be provided it was up to the applicant to take steps to provide it in light of the clear indication that it did not have it. Ground two is not made out.

164 I should just note that no fraud or negligence on the part of the migration agent was pressed before the Court. If the applicant's evidence, consistent at least in relation to the point that the agent had the Penalty Notice, is accepted, then the best (or worst) that can be said is that the agent's conduct was either one of omission or some incompetence. Whatever the case, this remains unexplained before the Court. 17 Having found no jurisdictional error in the Tribunal decision, the Federal Magistrate dismissed the appellant's application with costs.

The Appeal in this Court 18 The appellant filed a Notice of Appeal in this Court on 15 February 2010. That document has subsequently been amended on two occasions. 19 In her Further Amended Notice of Appeal (the Notice of Appeal), the appellant seeks relief by way of the constitutional writs. She seeks an order allowing the appeal from the Federal Magistrate's decision, a Writ of Certiorari quashing the Tribunal's decision and a Writ of Mandamus requiring the Tribunal to rehear and determine her case according to law. The grounds of appeal finally relied upon by the appellant were as follows: 1. The Court erred in failing to find that the decision of the Refugee Review Tribunal ("the Tribunal") was affected by jurisdictional error in that the Tribunal failed to accord the Appellant procedural fairness:

a. The Tribunal failed to give the Appellant sufficient opportunity to give evidence, or make submissions, about what turned out to be the determinative issues arising in relation to the review, including it did not believe that the religious gathering of 20 people took place; it did not believe the Appellant was detained because a penalty notice had not been provided to the Department or the Tribunal; it did not believe that the Appellant was ill-treated; it was not satisfied that the Appellant practised Christianity in China or would practise it if she returned; and it did not believe the Appellant fled to Wuhan.

b. The Court incorrectly found that opportunities were given to the Appellant impliedly.

2. The Court erred in failing to find that the Tribunal acted unreasonably by failing to make enquiries or seek readily available information or documents regarding an issue that was of critical importance to the review.

a. The Appellant had indicated to the Tribunal that she had given her agent a copy of the penalty notice;

b. The failure of the Appellant to provide the penalty notice to the Tribunal was critical to its assessment of the issue of whether the Appellant had been detained;

c. Had the Tribunal made further enquiries and given the Appellant an opportunity to produce the penalty notice, it would have been in a position to be satisfied that the Appellant had been detained as alleged.

Ground 1: No Procedural Fairness 20 The first respondent submitted and the appellant accepted that this ground of appeal really amounted to a contention that the Tribunal had failed to comply with s 425 of the Act. 21 Section 425 of the Act provides: 425 Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 22 Particular (a) furnished in respect of this ground substantially repeats the matters relied upon by the appellant in support of the same ground raised before the Federal Magistrate. 23 The appellant submitted that: (a) The matters relied upon in Particular (a) to Ground 1 in the Notice of Appeal were issues within the meaning of s 425 of the Act and were not merely factual matters informing the resolution of a determinative issue. The Federal Magistrate had wrongly characterised those matters as factual matters and thus committed appealable error. The answers to the questions whether the appellant was a practising Christian, whether she was detained and ill-treated, whether she fled to Wuhan and whether a religious gathering of 20 people took place at her home on 27 July 2008 were themselves determinative of the review. The appellant relied upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. (b) The Tribunal had not made clear to the appellant during the Tribunal hearing that it had reservations or doubts about the appellant's story generally. (c) The Tribunal never asked the appellant to explain why her account should be accepted nor did it put the appellant on notice that the elements which turned out to be determinative - her ill-treatment, her flight, her practice of Christianity and the fact of 20 people attending a gathering - were all in doubt. 24 The first respondent submitted that:

(a) The delegate's decision sufficiently indicated that everything which the appellant had said as to her alleged experiences of religious persecution in China was in issue. In that event, there was no breach of s 425 of the Act (see SZBEL 228 CLR 152 at [47]). The delegate had found that there were doubts as to the appellant's credibility, that her claims relating to her activities as a Christian were "flimsy and unsubstantiated" and had concluded that she was not satisfied that the appellant had suffered persecution in China for religious reasons. Given this, so it was submitted, the appellant was not "entitled to assume" (SZBEL 228 CLR 152 at [35]) that any matters were not in issue when she had her hearing before the Tribunal and nothing said by the Tribunal indicated otherwise. Accordingly, there was no breach of s 425 of the Act.

(b) In addition, the Tribunal member questioned the appellant at length about her claims of past persecution at the Tribunal hearing. The Tribunal did not need to identify the significance of these questions or give a running commentary on the appellant's evidence (Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]-[89]).

The Tribunal did not need to express scepticism about each aspect of the appellant's claims so as to give a preliminary set of reasons for its decision (SZBEL 228 CLR 152 at [48]).

(c) An "issue" within the meaning of s 425 of the Act is a fairly general concept and does not refer to every particular claim or assertion or item of evidence. The "issue" in this case for the purposes of s 425 of the Act was whether the appellant was a practising Christian in China and whether she had been persecuted as a result of being a practising Christian in China as she claimed. That issue was explored at length at the hearing. No more needed to be done. 25 In SZBEL 228 CLR 152 at [33]-[35], the High Court said: 33 The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review" (s 425(1) (emphasis added)). The reference to "the issues arising in relation to the decision under review" is important.

34 Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 26 In the present case, the delegate held that she was not satisfied that the appellant had been or would be persecuted by the Chinese authorities for religious reasons. In support of that conclusion, she said that there were several factors that raised doubts as to the credibility of the appellant's claims and the genuineness of her fear under Convention related grounds. She then identified and discussed those factors. The delegate noted that the appellant had given no evidence or indication that she had ever encountered any significant difficulties in China on account of her religion. She described the appellant's statement at interview as vague and lacking detail. She said that the appellant contradicted herself on many points throughout the interview which had taken place on 15 January 2009. She said that the appellant was not able to substantiate her claim that she had attended an underground church in China and had failed to prove that she had done so. A similar position obtained in relation to the alleged detention. The delegate also referred to credibility concerns which she had in relation to the means by which and the circumstances in which the appellant had left China and travelled to New Zealand and then to Australia. The delegate discussed the difficulties which she had with that topic. The delegate noted the fact that the appellant had left China travelling on a passport in her own name. She took the view that the appellant's relatively easy and lawful departure from China was a strong indicator that her claimed detention and involvement in an underground Christian church was unlikely to have been known to the Chinese authorities. The delegate described the appellant's claims as "flimsy and unsubstantiated". The delegate also held that the appellant could safely relocate in China. 27 The delegate's decision made clear that everything which the appellant was claiming had been doubted by the delegate and was thus going to be in issue before the Tribunal. 28 Further, I consider that the Tribunal did fairly indicate to the appellant during the Tribunal hearing that it had doubts about her version of events and that, in particular, the matters relied upon ultimately by the Tribunal at [56]-[57] of the Tribunal's Reasons as important matters were, with the exception perhaps of the escape to Wuhan, fairly notified to the appellant. 29 Towards the end of the Tribunal hearing, the Tribunal member asked a number of questions addressing the credibility of the appellant's claims to have attended church gatherings. At the end of those questions, the following questions were asked and the following answers were given: Q452 Mmm. O.K. The other great concern I have is that you said that Preacher Tien had been arrested four times. You see, if the authorities were so against you having these gatherings, I am quite sure they would have been watching Preacher Tien, and as a consequence, you would not have been able to have had all those gatherings that you say you had without interference from the authorities.

Q453 Mmm. O.K. All right. I've finished asking you questions about your application. Is there anything else you would like to tell me?

A(I) Yeah. 30 The passage which I have extracted at [29] above and the questions leading up to it made it clear to the appellant that the Tribunal had doubts about her claims to have attended church gatherings and, in particular, about the gathering of 20 people at her home which had been the subject of particular claims made on her part. 31 The Tribunal member asked specific questions about the penalty notice. The tone and tenor of those questions made clear to the appellant that her story about having been given such a notice was well and truly under scrutiny. The Tribunal member asked why the penalty notice had not been provided to the Tribunal. This series of questions and answers made clear to the appellant that the failure of the appellant to ensure that the penalty notice was provided to the Tribunal may be regarded by the Tribunal as a significant matter going to her credibility. 32 The questions to which I have already referred, coupled with other questions directed to her alleged practice of Christianity in China, must have alerted the appellant that her claim to have practised Christianity in China was being doubted by the Tribunal. 33 In the end, I have come to the firm conclusion that both the delegate's reasons and the Tribunal's questions during the Tribunal hearing sufficiently indicated to the appellant in the circumstances of the present case that everything she said in support of her application was in issue. The Tribunal also asked the appellant to expand upon all of the matters forming part of the particulars to Ground 1 with the exception of her flight to Wuhan (SZBEL 228 CLR 152 at [47]-[48]). At its highest, the escape to Wuhan was just a factual matter which was considered as something which informed the Tribunal's consideration of the issues. The appellant's claim that she practised Christianity in China and her claim that she had been persecuted for it by the authorities were the issues before the Tribunal. The flight to Wuhan was, in any event, a late element in the appellant's chronological account, the acceptance of which must logically depend upon the Tribunal's accepting earlier elements of that account. Here, those elements were not accepted either by the delegate or by the Tribunal. It was, therefore, not necessary for the Tribunal to alert the appellant specifically to the possibility that the Tribunal might not accept her claim that she fled to Wuhan for the reasons which she gave (Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 at [11]-[12]). 34 The submissions made on behalf of the first respondent are correct and I accept them. 35 Accordingly, for the reasons which I have given, I reject Ground 1.

Ground 2: Unreasonable Failure to Make Enquiries 36 The appellant claimed that her husband had transmitted by facsimile transmission to her migration agent a copy of the penalty notice about which she had given evidence. The appellant did not produce the penalty notice to the Tribunal. The Tribunal member made clear to the appellant during the Tribunal hearing that the Tribunal did not have a copy of the penalty notice. It was plainly within the power and control of the appellant to procure the penalty notice, have it translated and present the translation with the original penalty notice to the Tribunal. This was not done. No explanation as to why this was not done was ever offered to the Tribunal. 37 The appellant did not seek an adjournment of the Tribunal hearing in order to procure the penalty notice. 38 Yet, it was submitted on behalf of the appellant, that the Tribunal should have either contacted the appellant's migration agent or granted a short adjournment to the appellant so that she could contact her agent and obtain a copy of the penalty notice. It was also submitted that the Tribunal perhaps should have made enquiries with its own Registry to see whether a copy of the penalty notice had been lodged but had not been connected up to the Tribunal's file. 39 The Federal Magistrate held that there was no duty to enquire in the various ways asserted by the appellant. At [139] of his Reasons, the Federal Magistrate said: In any event, in my view, in the circumstances it is not necessary to resolve the degree to which SZIAI may be said to "overrule" Le, or otherwise. This is because the relevant circumstances of this case do not reveal even the limited circumstances on which the proposition in Le is based, or the "some circumstances" in SZIAI which could supply a sufficient link to the outcome such as to constitute a failure to review. 40 I agree with the Federal Magistrate that there was no duty on the Tribunal in the circumstances of the present case to do any of the things which the appellant now asserts the Tribunal should have done. The relevant principles are laid down by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27] and [52]. 41 It was not unreasonable for the Tribunal to proceed upon the basis that it was a matter for the appellant as to whether or not the penalty notice would be provided to the Tribunal. As was submitted on behalf of the first respondent, the Tribunal can hardly be expected to hijack the task of running the appellant's case for her by making enquiries of the appellant's migration agent or taking any of the steps which the appellant now asserts should have been taken. There would usually be good reason for the Tribunal not to go down that path. It is for the appellant to provide whatever evidence she wishes in support of her claims (Abebe v Commonwealth (1999) 197 CLR 510 at [187]). In the circumstances of the present case, the Tribunal had no obligation to take steps to make out the appellant's case for her if she was unwilling to take up the opportunity to do so herself by presenting the penalty notice to the Tribunal (Luu v Renevier (1989) 91 ALR 39 at 45; see also Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [35] per Keane CJ and at [49] per Emmett J). Further, the appellant apparently made no effort to seek to bring the penalty notice to the attention of the Tribunal after the Tribunal hearing. 42 For the reasons which I have explained, I reject Ground 2.

Conclusion 43 I have rejected both grounds of appeal. The appeal must therefore be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.