consideration
20 In order to understand aspects of the appellant's application for judicial review it is necessary to say something about some of the material that had been placed before the Minister's delegate by the appellant.
21 The appellant placed before the delegate a copy of a document dated 13 April 2009 said to have been from the Catholic Fuzhou Archdiocese. The document was provided by facsimile transmission from the appellant's migration agent. It was accompanied by a letter dated 22 April 2009 from the agent referring to the document as a "certificate". An English translation was provided by the same transmission. The certificate itself was said to have been "faxed from China". The Tribunal noted that the Mandarin version of the document was on a letterhead that was in English and gave full contact details including an address, telephone number and facsimile number. The Tribunal found it to be strange that full contact details would be given on letterhead if the document really was from an underground, illegal church. The Tribunal raised this matter with the appellant who said that he did not know how the document had been obtained. The appellant told the Tribunal that his family wanted to help him and had gone to get the letter from the "head church". The document stated:
[The appellant] is indeed a admirer of the faith without baptism in this Diocese. His parents and grandparents have been enthusiastic church members for generations. Due to other reasons, he himself has not been baptized. We kindly plead that your country would try your best to look after him.
22 The Tribunal noted that it had before it independent evidence to suggest that many types of documents, such as the one before it, could be fraudulently and easily obtained in China. It reasoned that the document could have been prepared by anyone and that ringing the telephone number shown on the document would not have satisfied it that it was probative evidence in support of the appellant's claims. In particular the Tribunal noted that it would not know to whom it was speaking in any such telephone conversation and that a telephone call would not overcome the problems the Tribunal had identified with the appellant's credibility. In the end result, the Tribunal said that it placed no weight on the document.
23 The first ground of appeal, read as I have indicated, reflects in part the substance of the first ground of the application before the Federal Magistrates Court, namely an alleged failure on the part of the Tribunal to comply with s 424A of the Act.
24 Section 424A of the Act obliges the Tribunal to give clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. In performing that obligation, the Tribunal is to ensure, as far as it is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review. The Tribunal is also obliged to invite the applicant to comment on or to respond to the information. However, s 424A does not apply to information that is not specifically about the applicant: s 424A(3)(a); Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.
25 Paragraph 1 of the particulars that had been provided in the application before the Federal Magistrates Court shows that this ground of appeal relates specifically to the findings in [119] of the Tribunal's decision record. Those findings were as follows:
As already noted the Tribunal does not accept that the applicant or his parents are members of an underground Catholic Church. If the authorities were to become aware that the applicant had applied for refugee status in Australia, based on the independent information available, the Tribunal considers that the authorities would view this as his attempt to obtain an economic advantage by staying in Australia, rather than an act of political or other disloyalty to China. The Tribunal does not accept that the applicant or his family would be persecuted on the basis of him returning to China as an unsuccessful asylum seeker.
[Emphasis added]
26 In the hearing before the Federal Magistrates Court the appellant contended that the Tribunal failed to outline to the appellant why the "independent information available" was relevant and failed to give the appellant an opportunity to comment in writing on that matter.
27 The independent information before the Tribunal concerned two main topics: the position of Catholics in China, and the procurement and use of fraudulent documentation in China. This information plainly fell within s 424A(3)(a) of the Act, with the consequence that s 424A(1) of the Act did not apply to it. It follows that the Federal Magistrates Court was correct to reject this ground of the application.
28 The first ground of appeal also relies on an alleged failure to find that the Tribunal breached s 91R(3) of the Act. This matter was raised by paragraph 5 of the particulars that had been provided in the Federal Magistrates Court. Section 91R(3) provides, relevantly, that conduct engaged in by a person is to be disregarded unless 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.
29 At the hearing before the Federal Magistrates Court, the appellant's complaint in this regard was not particularised beyond what may be taken to be a bare assertion that s 91R(3) was not properly applied by the Tribunal. The reason why it was said that s 91R(3) was not properly applied, was not articulated.
30 The only matter apparent on the face of the Tribunal's decision record to which s 91R(3) of the Act could relate was the finding in [120] concerning the appellant's church attendance in Australia:
The Tribunal accepts that, at some point, the applicant has attended church services once or twice in Australia. However, bearing in mind the problems that the Tribunal has set out above in regard to the applicant's evidence, the Tribunal is not satisfied that he has engaged in religious activities in Australia, otherwise than for the purpose of strengthening his claim to be a refugee, and disregards his conduct in Australia in this regard under s. 91R(3) of the Act.
31 In my view this was a finding of fact to which the Tribunal was entitled to come. It was a finding that the Tribunal made "bearing in mind the problems that the Tribunal had set out above in regard to the applicant's evidence". Based on the same concerns, the Tribunal had found that the appellant had fabricated his claims in order to support his application for a protection visa.
32 Thus, in circumstances where it had already rejected the appellant as a witness of truth and had found (amongst other things) that neither the appellant nor his parents were members of an underground church, the Tribunal was not satisfied that the appellant's attendance at church services once or twice in Australia was an activity that had been engaged in otherwise than for the purpose of strengthening the appellant's claim to be a refugee.
33 The Federal Magistrates Court correctly rejected this ground of the application. In so doing it noted that there was nothing in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 which cast any doubt upon the validity of the Tribunal's approach. In my view that observation was correct in light of the particular circumstances of this matter.
34 Accordingly, the first ground of appeal fails.
35 The second ground of appeal, read as I have indicated, appears to reflect the substance of the second ground of the application before the Federal Magistrates Court, namely an alleged failure on the part of the Tribunal to comply with s 425 of the Act. In the proceedings before the Federal Magistrates Court this ground was advanced specifically by reference to what was claimed to be "corroborative" evidence. In light of paragraph 3 of the particulars relied upon by the appellant, the complaint was that the Tribunal breached s 425 of the Act by failing to make further enquires (presumably from third parties) about the document purportedly from the Catholic Fuzhou Archdiocese, with a view to establishing its authenticity.
36 It is not apparent how, in the present circumstances, the Tribunal's refusal to make such enquiries translates into a failure by the Tribunal to invite the appellant to appear before it to give evidence and to present arguments "relating to the issues arising in relation to the decision under review", and hence a breach of s 425. The Tribunal's decision record shows that the Tribunal raised its concerns about the authenticity of this document on two occasions during the Tribunal hearing on 30 July 2009 and told the appellant that, in light of those concerns, it could decide to place no weight on the document.
37 Although proceedings before the Tribunal have an inquisitorial (as opposed to adversarial) character, no general duty is imposed on the Tribunal to undertake its own enquiries in addition to information provided to it by an applicant and otherwise under the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [1]. The Tribunal's statutory function was to "review" the decision before it. Neither s 425 nor any other provision of Division 4 of Part 7 of the Act obliges the Tribunal to embark on a fact-finding mission. Indeed, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness, it is not required to obtain such evidence.
38 In SZIAI at [25] the plurality in the High Court observed:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[Reference to footnote omitted]
39 However, their Honours went on to observe that, by reason of the particular facts and circumstances of the case before it, it was not necessary to explore those questions of principle.
40 In the present case, the Tribunal reasoned that it would be futile to ring the telephone number in China shown on the document, as suggested by the appellant, because it would not have been satisfied by an enquiry of that kind that the document was probative evidence in support of the appellant's claims. This was because, having been satisfied that the document could easily have been fabricated (based on the contents of the document and the independent evidence before it concerning the procurement of fraudulent documents in China), a telephone conversation with a person answering the given telephone number would not have alleviated those concerns, given that the Tribunal would not know to whom it was speaking. In my view that approach was, in the given circumstances, rational and reasonable. As was the case in SZIAI, there is no factual basis for the conclusion that this failure to enquire was tantamount to a failure by the Tribunal to undertake its statutory duty to review the delegate's decision or, otherwise, was so unreasonable as to support a finding of jurisdictional error. The Federal Magistrates Court was correct to reject this ground of the application. It follows that the second ground of appeal fails.
41 The third ground of appeal, read as I have indicated, raises, in substance, the same alleged error as the second ground of appeal, namely the failure to "look into critical evidence", being the purported letter from the Catholic Fuzhou Archdiocese. For the reasons given above, there was, in the circumstances, no denial of natural justice as required under Division 4 of Part 7 of the Act. It follows that the third ground of appeal fails.
42 I would also add, for the sake of completeness, that paragraphs 2 and 4 of the particulars filed in support of the grounds in the application before the Federal Magistrates Court do not seem to engage any of the grounds raised in the notice of appeal in this court. In the event that I am wrong in that conclusion, I should say something about the matters which are thereby raised.
43 Paragraph 2 of the particulars raised a complaint that the Tribunal only considered the appellant's application on the basis of a well-founded fear of being persecuted for reasons of religion and not for reasons of membership of a particular social group. This complaint, however, is misconceived. The Tribunal considered the appellant's claim to fear harm as a Catholic and because of his membership of an underground Roman Catholic Church. The Tribunal also considered the appellant's claims that he was a member of a family that had been devoted Catholics for generations and that he had been raised as a Catholic. However, for the reasons which it gave, the Tribunal did not accept that the appellant or his parents were Roman Catholics, that the appellant had been brought up in a Roman Catholic family or that the appellant or his parents were members of an underground church in China. It also found that the appellant would not be implicated to be a Catholic because of any actions or beliefs of his parents or other relatives. The Tribunal thus rejected the entire factual basis of the appellant's claim to have a well-founded fear of persecution for a Convention-related reason, whether that reason be characterised as being on grounds of religion or membership of a particular social group. The Federal Magistrates Court correctly rejected that ground of the application.
44 Paragraph 4 of the particulars effectively invited a review of the facts on the merits and contained an allegation of bias on the part of the Tribunal because of the findings of fact that it had made. The Federal Magistrates Court correctly resisted any invitation to engage in merits review and correctly rejected the allegation of bias on the part of the Tribunal.