SZNYF v Minister for Immigration and Citizenship

Federal Court of Australia|2013-02-28|Before: Mr P, Nicholas J

BACKGROUND 1 This is an appeal from a decision of a Federal Magistrate dismissing the appellants' application to quash a decision of the second respondent (the Tribunal) dated 2 December 2011. By its decision, the Tribunal affirmed the decision of the officer of the Department of Immigration and Citizenship (the Delegate) not to grant the appellants protection visas. 2 Both of the appellants are citizens of China. The first appellant, the wife of the second appellant, arrived in Australia on 13 December 2008. The second appellant arrived in Australia on 22 November 2007. On 20 January 2009 the first appellant applied for a protection visa. In her application she named the second appellant as a member of her family unit. 3 The Delegate refused the appellants' application for protection visas on 29 April 2009. That decision was affirmed by the Tribunal on 25 August 2009. A Judge of this Court quashed that decision on 10 August 2010 and remitted the matter to the Tribunal for reconsideration. On 2 December 2011, the Tribunal (differently constituted) again affirmed the decision of the Delegate. Its reasons for doing so are detailed and lengthy. 4 The first appellant claimed to fear persecution in China on account of her Catholic faith. The primary judge's reasons include a detailed account of the first appellant's claims which I need not repeat. In summary, the first appellant claimed: After the birth of her first son in 1989, she was forced by authorities to have a birth control device fitted. The operation was unsuccessful and she became pregnant again in 1990. After the birth of her second son she was forced to have a ligation. Her family had to pay fines in order to have the second son's birth registered. In about June 1989 the first appellant became a Christian. She became involved with the "underground" Catholic Church. The Church held services in the houses of its members. These services were not sanctioned by the Chinese authorities. In October 2006 a meeting of the Church was disrupted by police and local officials. The police used batons against members of the Church some of whom were injured. The Priest was detained. The members present were informed that they would be punished if caught attending such a meeting again. Since that time the first appellant has been harassed as a result of her involvement with the Church. She was placed under surveillance at work after the police informed her employer of her involvement. In June 2008 she was confronted by her neighbourhood committee in relation to her involvement with the Church. One member of the committee knocked the first appellant off her feet and pushed her against a wall. She hit her head and this had resulted in some memory loss. The first appellant would be persecuted if she were to return to China because of her Catholic religion. 5 The Tribunal did not accept that the first appellant was a member of the underground Catholic Church in China. It also rejected the first appellant's claim that she was beaten by police during the raid which she claimed took place in October 2006. In rejecting the first appellant's evidence the Tribunal drew attention to various inconsistencies between accounts given by her to the Delegate and later accounts given by her to the Tribunal. In particular, the first appellant claimed that the meeting in October 2006 took place in her home, although her statement to the Delegate indicated this not to be the case. The explanation given by the first appellant for this inconsistency was rejected by the Tribunal as untruthful.

DECISION OF THE PRIMARY JUDGE 6 The amended application in the Federal Magistrate's Court contained three grounds of review: 1. The Tribunal's decision could give rise to an apprehension of bias in the mind of a reasonable observer. Particulars The Tribunal stated (at RD 401, [300]) that it did not accept certain claims made by the Applicants in relation to injuries leading to memory loss. The Tribunal stated "The Tribunal does not accept that this incident took place because [sentence unfinished]". The unfinished sentence could lead a reasonable observer to conclude that the Tribunal had decided to reject the evidence without having formulated a reason for doing so. 2. The Tribunal failed to give effect to the orders and findings of the Federal Court in SZNYF v MIAC [2010] FCA 839. Particulars The Federal Court found that the previously constituted Tribunal had failed to consider whether the Applicant had been the subject of a valid summons in relation to her claimed activities. The reconstituted Tribunal similarly failed to determine or explain why it considered the summons in question not to be genuine. 3. The Tribunal made findings of fact without considering a reasonably likely alternative hypothesis. Particulars The Tribunal made a finding that the Chinese authorities would not perceive the Applicants to have lodged protection visa applications because such applications are made confidentially (RD 409 [340]). The Tribunal failed to consider that the Chinese authorities would be aware of the significance of the types of bridging visas issued to the Applicants over a considerable period of time and could have drawn a conclusion on that basis that the Applicants had lodged protection visa applications. 7 The primary judge rejected all three grounds. In light of the notice of grounds of appeal filed in this Court (which I summarise below) the only ground raised before the Federal Magistrate that is still of some relevance is ground 1. This ground, as presented to the primary judge, focused upon para [300] of the Tribunal's reasons for decision. It is necessary at this point to set out that paragraph. At para [300] the Tribunal stated: 300. In coming to this finding, and other relevant findings the Tribunal has considered evidence given at the first Tribunal's hearing that she suffered memory loss from a head injury. In this regard, at that hearing the applicant had stated that in June 2008 the neighbourhood committee asked her to report to them. The applicant did so, and they again confronted her with allegations of church involvement. The applicant denied this to the committee, and turned to go away, but a member of the committee knocked her off her feet, and against a wall. She suffered a head injury. She was treated with some Chinese medication. She claimed to continue to suffer intermittent pain on one side of the head, and some consequent memory loss. The Tribunal does not accept that this incident took place because [sic] 8 Paragraph [300] of the Tribunal's reasons ended with the words "because". It did not go on to explain why the Tribunal did not accept that the incident involving the neighbourhood committee member occurred. 9 The primary judge rejected the first appellant's claim that para [300] gave rise to a reasonable apprehension of bias. His Honour dealt with this issue at [36] of his reasons. He said that "[t]he omission of the conclusion to that paragraph is obvious and just as obviously a mistake." His Honour concluded that a fair minded observer would not apprehend the possibility of bias on the part of the Tribunal. 10 It is apparent that the appellants' submission in relation to para [300] to the primary judge ventured beyond the specific grounds raised in the amended application. Their submissions, at least as understood by the primary judge, also raised an argument based upon s 430 of the Migration Act 1958 (Cth) (the Act). The primary judge dealt with this argument at [33]-[34] of his reasons. His Honour said: [33] As to the last point, there is no general rule at common law that an administrative decision-maker must give reasons for a decision, although in certain circumstances such a requirement might be implied: Soliman v University of Technology, Sydney [2012] FCAFC 146 at [42]ff. Given that the Act provides for judicial review of Tribunal decisions, it may well be that the common law would require the Tribunal to give reasons for its decisions were it not for s.430 of the Act which makes such provision. It may therefore be that the applicants allege that the obligation to give reasons arose out of s.430(1) of the Act which provides: 430 Refugee Review Tribunal to record its decisions etc. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. [34] However, a failure to comply with s.430 does not amount to jurisdictional error which, as noted earlier, is the only basis on which the Court may set the Tribunal's decision aside. Nor am I persuaded that the failure to complete the paragraph indicates that the Tribunal had no reason for the conclusion it expressed or that the omission reveals a failure to consider the issue in question. A consideration of the Tribunal's reasons as a whole reveals a thoughtful examination of the applicants' claims, inconsistent with arbitrary decision-making. Seen in context, I do not conclude that the Tribunal's failure to complete para.300 of the reasons represents a failure to consider the relevant issue. I accept the Minister's submission that its failure to express its reasoning was an oversight.

GROUNDS OF APPEAL 11 The grounds of appeal filed in this Court are discursive but, in essence, they appear to raise the following two issues: Para [300] of the Tribunal's decision demonstrated a failure to comply with s 430 of the Act, and the Federal Magistrate should have found that in failing to comply with this section the Tribunal committed a jurisdictional error (Grounds 1-4). The Tribunal failed to comply with s 424A and s 430 of the Act in respect of its finding that the second appellant was not a Catholic (Grounds 5-8). 12 In her oral submissions the first appellant made submissions to me as to why the Tribunal should have been satisfied that both she and her husband had a well founded fear of persecution on account of their religion if they were to return to China. I explained to her that there must be some error in the primary judge's reasoning if the appeal was to succeed.

Grounds 1-4 13 These grounds all relate to para [300] of the Tribunal's reasons for decision which is, as the primary judge said, an obvious mistake. Two questions arise in relation to para [300]. First, was the Tribunal required to explain why it did not accept that the first appellant had been knocked off her feet and pushed against the wall in June 2008 by a member of the neighbourhood committee? And second, if it was required to provide such an explanation, did its failure to do so constitute jurisdictional error? 14 McHugh J's judgment in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 provides the answer to both questions. In that case his Honour said (at [64]-[65]): [64] There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the Tribunal to refer to evidence contrary to findings of the Tribunal [Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 31; Logenthiran v Minister for Immigration and Multicultural Affairs [1998] 1691 FCA; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182]. However the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs [[1999] FCA 811], Addo v Minister for Immigration and Multicultural Affairs [[1999] FCA 940] and Sivaram v Minister for Immigration and Multicultural Affairs [[1999] FCA 1740]. In Addo, the Court said [[1999] FCA 940 at [24] and [31]]: Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. … It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. [65] In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. … 15 His Honour was satisfied that there was an express rejection of the prosecutor's wife's evidence in that case and that there had been no failure to comply with the requirements of s 430(1) of the Act. His Honour then said at [68] and [70]: [68] But there is a more fundamental reason why the argument based on s 430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. … … [70] The language of s 430(1) indicates that the requirement that the Tribunal give reasons for its decision is not a requirement which goes to jurisdiction. The opening words of s 430(1) presuppose that the Tribunal has made a decision: "[w]here the Tribunal makes its decision", and the sub-section then goes on to impose requirements to be fulfilled subsequent to that decision being made. … 16 In the present case there was an express rejection by the Tribunal of the first appellant's evidence concerning the incident referred to in para [300] of the Tribunal's reasons. Elsewhere in the Tribunal's reasons it is made clear that the Tribunal did not accept that the first appellant was a credible witness. There were various matters which led the Tribunal to that position. One of these, which I have already mentioned, was the inconsistency in the first appellant's evidence concerning the events of October 2006. 17 I agree with the primary judge that there was no failure by the Tribunal to comply with s 430(1) of the Act.

Grounds 5-8 18 None of grounds 5-8 was relied upon below. I would not grant leave to the appellants to rely upon them in this Court. To the extent grounds 5-8 raise the matter of s 430 of the Act, they are answered by the decision of McHugh J in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405. So far as s 424A of the Act is concerned, the appellants did not develop the submission that there was a failure on the part of the Tribunal to comply with s 424A of the Act in any meaningful way. There is nothing to indicate that there was any such failure. 19 Section 424A applies in respect of "information" which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The Tribunal's views in respect of the second appellant's credit did not constitute "information" in the sense that word is used in s 424A: see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [15]-[21]; Minister for Immigration v SZLFX (2009) 238 CLR 507 at [20]-[26].

DISPOSITION 20 In the result, I am satisfied that the primary judge's decision was correct. The appeal will be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Migration Act 1958(Cth)s 424A, s

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