FEDERAL COURT OF AUSTRALIA

SZEIE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 987

MIGRATION – judicial review – power of the Federal Court exercising appellate jurisdiction to receive further evidence – Federal Court of Australia Act 1976 (Cth) s 27 – obligation of the Refugee Review Tribunal to provide appellant with information which forms part of the reason for the decision – exception for information given by the appellant for the purposes of the application to the Refugee Review Tribunal – Migration Act 1958 (Cth) s 424A(3)(b)

Migration Act 1958 (Cth) ss 424A, 424A(3)(b), 425

Federal Court of Australia Act 1976 (Cth) s 27

CDJ v VAJ (1998) 197 CLR 172 applied

Wollongong Corporation v Cowan (1955) 93 CLR 435 cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 cited

SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 cited

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 cited

Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27 applied

Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] 131 FCR discussed

SAAY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 393 cited

SZEIE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFIARS

NSD 677 of 2005

SACKVILLE J

20 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE APPEAL

1                     This is an appeal from a judgment of the Federal Magistrates Court given on 13 April 2005.  The learned Magistrate dismissed an application for judicial review of a decision of the RRT handed down on 4 August 2004.  The RRT had affirmed a decision of a delegate of the respondent (‘the Minister’) to refuse to grant the appellants protection visas. 

2                     The appellants are a married couple and their son.  They are citizens of the People’s Republic of China (‘PRC’).  The appellants arrived in Australia on 31 August 1998 on temporary business visas.  Some five and half years later, on 13 April 2004, they lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs.  On 20 April 2004, the delegate refused to grant the appellants protection visas.  They subsequently sought review of this decision by the RRT but, as I have noted, it affirmed the delegate’s decision and the subsequent application for judicial review was dismissed.  Only one of the appellants (the husband) made specific claims under the Convention relating to the Status of Refugees (‘the Convention’).   I shall refer to him as ‘the appellant’.

3                     The notice of appeal asserts that the Magistrates Court erred by not finding that the RRT had failed to comply with its obligations under:

            (i)         s 424A of the Migration Act 1958 (Cth) (‘Migration Act’); and

            (ii)        s 425 of the Migration Act.

4                     The appellant contends that the RRT did not give him ‘particulars of the negative information against [his] claims’, but he does not specify the ‘negative information’ to which he refers.  The appellant also says that although the RRT allowed him to appear before it (as s 425 requires), it did not permit him to give complete evidence or to present full arguments.  Neither the notice of appeal nor the appellant’s written submissions explain the manner in which the RRT is said to have breached its obligations, beyond asserting that the RRT failed to consider the independent country information before it.

5                     The appellant’s oral submissions did not add anything to his amended notice of appeal.  However, the appellant produced at the hearing of the appeal and sought to tender the tape of the proceedings before the RRT.  He did so, as I understood his position, in order to support his contention that the RRT did not afford him an opportunity to give complete evidence or to present full argument.  Since the notice of appeal includes an unparticularised ground that the Magistrates Court should have found that the RRT denied the appellant procedural fairness, the tape may also have been tendered in support of that ground.

            THE APPELLANT’S FACTUAL CLAIMS

6                     The appellant claimed that his brother worked for the National Security Bureau (‘NSB’) in the PRC.  He said that his brother and other NSB officers attempted to persuade him to provide information that he could obtain from his business dealings, particularly during his overseas travels.  He was asked specifically to obtain information about people who had ‘fled’ from Hong Kong to Australia before Hong Kong was returned to the PRC in 1997.   He was also asked to report on Falun Gong practitioners in Australia.  The appellant claimed that he declined this request and was told that he might not be permitted to travel for business purposes in the future.  He claimed that he was placed under ‘mental and psychological pressure’. 

7                     The appellant further claimed that he had become involved with Falun Gong from early 2001 and that the practice of Falun Gong had become an important part of his life.  In September 2002, he had returned to his home town in the PRC to visit relatives.  His brother and NSB officers had invited him to dinner on several occasions during this visit.  One week prior to the appellant leaving the PRC on this occasion, NSB officers told him that they knew what he had done overseas, especially his involvement with Falun Gong.  In order to receive permission to leave the PRC, he agreed to work for the authorities collecting information about Falun Gong practitioners in Sydney.  He was warned that both he and his brother would be in big trouble if they dared to betray the NSB.

8                     The appellant said that he had not in fact assisted the NSB with information while in Australia.  He said that he had been threatened over the telephone but that he had informed the NSB in writing that he was not prepared to assist them.  He had also warned the NSB that he would openly expose to the media everything the NSB had done to Falun Gong practitioners.  The appellant claimed that he would be subject to arrest and detention by reason of his Falun Gong practice.  He also feared that he would be mistreated by the NSB because he would be regarded as having betrayed the PRC authorities. 

9                     At the hearing before RRT, the appellant was asked why he had not obtained in Australia the information sought by the NSB.  He replied that the persons who were of interest to the NSB only spoke Cantonese, while he only spoke Mandarin.  The RRT put to the appellant that it did not seem plausible that the NSB would have requested that he obtain information from Cantonese speaking persons if the officers were aware that he could not speak Cantonese.  The appellant then claimed that there were also some Mandarin-speaking persons from the PRC and from Taiwan in whom the NSB was interested.  However, when asked who those persons were, the appellant was unable to identify them.

10                  The appellant said that the NSB sent an officer to Australia to ascertain his whereabouts in 2000 and again in 2001.  When he was located by the NSB, he was asked to explain his failure to report and ‘threatened’ that if he did not provide the required information he would be harmed.

11                  Notwithstanding the appellant’s claimed fear of harm by the NSB, he returned to the PRC in October 1998, September 2000 and September 2002.  He claimed that on the third occasion he had been approached by a ‘senior official’ within the NSB who inquired why he had not provided any of the promised information. 

            THE RRT’s REASONS

12                  The RRT did not consider it plausible that the NSB would have requested the appellant to obtain information from Cantonese speaking persons residing in Australia if he himself was unable to speak Cantonese.  It thought that the NSB would have confirmed his ability to speak Cantonese if he was in fact required to obtain information from Cantonese speaking people.  For that reason, the RRT did not accept that the NSB had asked the appellant to obtain information about Cantonese speaking persons.  Moreover, given the appellant’s lack of political activities in Australia or elsewhere and the fact that he had not been given any training and had not been told what information to obtain, the RRT did not accept that the NSB had asked him to obtain information about people from Hong Kong, the PRC or Taiwan, as he had claimed.

13                  The RRT recorded the appellant’s claim that the NSB had asked him to provide information about the practice of Falun Gong in Australia.  The RRT pointed out that it had put to the appellant country information indicating that Falun Gong had not been made illegal in the PRC until 1999.  In consequence, the appellant had resiled from this claim and the RRT did not accept that he had been asked to obtain information about the practice of Falun Gong in Australia in 1998, as he had claimed.

14                  The RRT, on the basis of these findings, did not accept the appellant as a witness of truth.  Accordingly, it did not accept that he had been threatened by a senior NSB official when he returned to the PRC in September 2002.  Nor did the RRT accept the appellant’s claim that he had pretended to co-operate with the NSB when he returned to the PRC in 2002.  Given that the appellant had claimed not to have voluntarily contacted the NSB since August 1998, he would not have been able to feign co-operation in the way he suggested.  The RRT did not accept that the appellant had been approached by, or had any contact with, the NSB.

15                  The RRT noted that the appellant had been very vague about his practice of Falun Gong, except that he had provided evidence that he had practised Falun Gong in the four months leading up to the RRT’s hearing.  The RRT was not satisfied, however, that the appellant had been fearful of the NSB by reason of his adherence to Falun Gong or for any other reason.

16                  The RRT gave these reasons for its conclusion:

‘I do not accept he would have returned to PRC inter alia to conduct business in September 2002, if he had any fear of the NSB at that time as he claimed.  Secondly, I am not satisfied he would have willingly sought employment in Australia [by way of a 457 Business (Long Stay)] Visa] till March 2004, if this may have necessitated him returning periodically to the PRC, and thus subject him to the risk of harm by the NSB, if he really was fearful of the NSB as he claimed, arising from his alleged practice of Falun Gong.  Further, I am not satisfied he would have willingly sought employment in Australia [by way of a 457 Business (Long stay)] Visa] till March 2004, if this may have otherwise necessitated him ‘exposing himself to discovery’ by the NSB, if he really feared the NSB as claimed.  Thirdly, I am not satisfied he would have delayed applying for a Protection Visa till April 2004, if he really was suspected of practising Falun Gong by the NSB as he claimed.  As I do not accept the applicant is a witness of truth, I do not accept he is a sincere and genuine Falun Gong practitioner as he claimed.’

17                  In any event, on the basis of the country information, the RRT was not satisfied that a person who had been a mere participant in Falun Gong outside the PRC would experience a real chance of persecution on his return to the PRC by reason of that participation.

18                  The RRT did not accept that the appellant would be suspected in the PRC of revealing state secrets.  Indeed, it did not accept that he had even ‘threatened’ to go to the Australian media as he had claimed.

19                  For these reasons, the RRT was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason should he return to the PRC.  Accordingly, it affirmed the decision of the delegate to refuse him a protection visa.

THE JUDGMENT OF THE FEDERAL MAGISTRATES COURT

20                  The Magistrate noted that the application for review claimed that the appellant had been denied procedural fairness by the RRT, in that it had interrupted him, failed to give sufficient time for proper translation and failed to give him a fair opportunity to comment on its ‘negative understanding’ of his claims.  The Magistrate recorded that the appellant had made lengthy oral submissions, but observed that they amounted to a request for a review of the merits of the appellant’s factual claims to the RRT.  His Honour indicated that, insofar as the appellant sought merits review, it was not available in the context of an application for judicial review of the RRT’s decision.

21                  The Magistrate pointed out that the appellant had not tendered any transcript in support of his complaints about the conduct of the hearing before the RRT.  His Honour inferred that the pleadings had been prepared by a person with some legal training and had been drawn in a manner that required the support of a transcript of the RRT hearing.  His Honour recorded that at the directions hearing in the Magistrates Court the appellant had been provided with documentation including a document entitled ‘Information for (Unrepresented) Applicants’.  That document had specifically stated that the appellant should obtain from the RRT a tape recording of the hearing and that, if it was intended to use the tape as part of the application, a written transcript should be obtained.  The contents of that information sheet had been explained to the appellant by the Minister’s solicitor and the interpreter at the directions hearing.  The appellant had signed the information sheet, confirming that the document had been read to him by the interpreter.  Furthermore, the appellant had subsequently received legal advice pursuant to the Pilot RRT Legal Advice Scheme (NSW).

22                  The Magistrate was satisfied that the appellant had been informed of the importance of the tapes and transcript of the RRT’s hearing.  Nonetheless, no transcript had been filed or tendered in the proceedings in the Magistrates Court.  In these circumstances, there was no evidentiary basis for the complaints made by the appellant concerning the conduct of the RRT’s hearing. 

23                  Accordingly, the application for judicial review was dismissed.

TENDER OF THE TAPES

24                  Section 27 of the Federal Court of Australia Act 1976 (Cth) provides as follows:

‘In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence…’.

25                  In CDJ v VAJ (1998) 197 CLR 172, the joint judgment of McHugh, Gummow and Callinan JJ made it clear (at [97]-[98]) that the statutory power of the Court to receive further evidence is not restricted by principles articulated in cases such as Wollongong Corporation v Cowan (1955) 93 CLR 435, which were informed by the position in the English common law courts.  The scope of the power is to be determined as a matter of statutory construction (at [100]-[102]).  In this respect, their Honours pointed out (at [107]) that the discretion conferred by s 27 is not expressed to be limited in any way.  In particular, the provision contains no requirement that ‘special grounds’ or something similar be established before the evidence can be received on appeal.

26                  Their Honours considered (at [109]) that in construing s 27 of the Federal Court Act, it is necessary to take into account its remedial nature.  They observed (at [109]) that:

‘[i]ts principal purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous’. 

            Their Honours nonetheless cautioned that it was highly unlikely that Parliament intended that s 27 should be construed in a way that would have the practical effect of obliterating the distinction between the original and the appellant jurisdiction of the Court (at [111]).  Accordingly, they rejected (at [113]) the proposition that the discretion to receive further evidence is so wide that the Full Court could admit further evidence merely because it is useful.

27                  The joint judgment indicated (at [114]) that further evidence will more readily be admitted on appeal if it is not in dispute and if the Court is able to evaluate and take it into account in considering the appeal without the necessity for a re-hearing of the proceedings.  If there is no need for a new trial, other discretionary factors, such as the availability of the evidence at the trial and the need for finality of litigation are likely to be relevant to the exercise of the Court’s discretion.  The failure of the tendering party to adduce the evidence at trial is a ‘variable factor, the weight of which will depend upon all the other factors pertinent to the case’ (at [116]).  No invariable rule can be laid down.

28                  In this case, the appellant acknowledged that he had the tapes in his possession prior to the hearing before the Magistrates Court.  He did not give any clear explanation for his failure to tender the tapes at that hearing or for failing to obtain a transcript, other than asserting that no one had asked him for the tapes.  But, as the Magistrate found, the appellant had received and had explained to him, a document which set out what he should do if he wanted to use the tapes in the judicial review proceedings.  Moreover, the appellant received legal advice prior to the hearing and (as he stated to me) also received advice from a migration agent who assisted him in preparing his case for the Magistrates Court.

29                  Notwithstanding these considerations, if the appellant had provided particulars of his complaints against the RRT, whether in writing or orally, I might have been disposed to admit the tapes into evidence in order to assess whether there was any substance to his complaint.  However, the appellant never particularised his complaints about the conduct of the RRT member and he did not make clear precisely what he hoped to establish from the tender of the tapes.  I therefore reject the tender.

30                  I should record, for the sake of completeness, that during an adjournment in the proceedings I listened to the tapes.  Given the appellant’s generalized complaints about the conduct of the RRT member, it is appropriate to record that the tapes reveal nothing other than a courteous and conscientious attempt by the RRT member to understand the appellant’s account of events and to put to him fairly matters that cast doubt upon that account.

reasoning on the appeal

31                  Section 424A of the Migration Act provides as follows:

‘(1)      Subject to subsection (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)     invite the applicant to comment on it.

(2)       The information and invitation must be given to the applicant:

(a)               except where paragraph (b) applies – by one of the methods specified in section 441A; or

(b)               …

(3)       This section does not apply to information:

(a)               that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)               that the applicant gave for the purpose of the application; or

(c)                …’

32                  In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, a majority of the High Court held that a failure by the RRT to comply with the obligation imposed by s 424A to provide an applicant with written particulars of adverse information constitutes a jurisdictional error.  The majority considered that this is so even if the applicant has been advised orally of the relevant information and has not otherwise (that is, apart from the failure to give a written notification) been treated unfairly: see SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 at [45].

33                  As Mr McInerney submitted on behalf of the Minister, the RRT was not obliged to give the appellant particulars of the country information on which it relied in reaching its conclusions.  That information is ‘not specifically about the [appellant] … and is just about a class of persons of which the [appellant] is a member’ within the meaning of s 424A(3)(a) of the Migration Act: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264.

34                  The appellant’s notice of appeal and written submissions did not link the RRT’s reasons for rejecting his claim that he feared the NSB to his contention that the RRT had failed to comply with s 424A of the Migration Act.  Nonetheless I invited Mr McInerney to make submission as to whether the RRT had been obliged by s 424A(1) of the Migration Act to give the appellant particulars of the information on which it had relied in reaching that conclusion.  I identified the information that might fall within s 424A(1), as follows:

(i)         the fact that the appellant had returned to the PRC from Australia in September 2002;

(ii)        the fact that the appellant had willingly sought employment in Australia which necessitated his periodic return to the PRC (and thus exposure to the risk of harm by the NSB); and

(iii)       the fact that the appellant did not apply for a protection visa until April 2004, some five and half years after his arrival in Australia.

35                  Mr McInerney, as I understood him, accepted that each of the matters constituted ‘information’ and that each piece of information formed ‘part of the reason for affirming the decision under review’, for the purposes of s 424A(1)(a) of the Migration Act.  However, he submitted that each piece of information had been given by the appellant ‘for the purpose of the application’ within the meaning of s 424A(3)(b).  He argued that s 424A(1) did not apply and that the RRT therefore had not been required to provide particulars of each piece of information in the manner specified in s 424A(1)(a) of the Migration Act.

36                  In Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27, Ryan and Conti JJ expressed the view (at [17]) that:

‘“applicant” wherever appearing in s 424A means “applicant for review by the Tribunal of a Ministerial decision” and “application” correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review’.

37                  Merkel J agreed that the word ‘application’ in s 424A refers to the application for review by the RRT and not to the original application for a protection visa.  Although his Honour did not expressly adopt the statement in the joint judgment that ‘application’ means the ‘proceeding before the [RRT]’, he said nothing to the contrary.  His Honour explained his approach to the question of construction as follows (at [40]):

‘An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate’s decision.  Such information may, in some cases, have been provided prior to the application for a visa.  The prescribed application form requires that the basis for the application be stated.  Further, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister.  An applicant may have no record of the information provided but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT.  It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it.  That approach has particular importance in the context of the inquisitional and non-adversarial nature of proceedings before the RRT.’

38                  The observations made on the construction of the words ‘applicant’ and ‘application’ in Al Shamry are strictly dicta.  In Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] 131 FCR 1, Gray ACJ expressed reservations about the reasoning in Al Shamry.  His Honour pointed out that the Court did not advert specifically to s 418(3) of the Migration Act which, in effect, requires the RRT to be supplied with all documents held by the Department relevant to the review of a decision of a delegate.  As his Honour pointed out (at [8]), in most cases this would include information supplied by an applicant at an earlier stage of making an application for a visa. 

39                  A subsequent Full Court, however, appears to have accepted the correctness of the view stated by Ryan and Conti JJ in Al Shamry: SAAY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 393, at [33].  As a single Judge, it is appropriate for me to regard Al Shamry as correctly stating the law unless and until a Full Court or the High Court adopts a different construction.

40                  Given that the word ‘application’ in s 424A refers to the proceeding before the RRT (as distinct from the formal written application to the RRT), information given ‘for the purpose of the application’ would seem to encompass information given at the RRT hearing by an applicant in support of his or her application to review the delegate’s decision.  This view is consistent with the remark of McHugh J in SAAP (at [50]), that the obligation on the RRT under s 424A(1) to invite comment does not apply to information given by the applicant ‘regardless of when that information is given’.

41                  In the present case, the appellant’s application to the RRT was accompanied by a statutory declaration.  In that document, the appellant stated that:

·        he had carefully considered the delegate’s decision to refuse his application for a protection visa;

·        he had returned to the PRC after having arrived in Australia; and

·        he did not dare to lodge his application for a protection visa because he feared retribution from the NSB.

42                  The RRT recorded that at the hearing the appellant reiterated and added to the claims he had previously made.  In his oral evidence, he stated (among other things) that:

·        he had left the PRC in August 1998 for Australia;

·        he had returned to the PRC on several occasions after that date; and

·        he had sought a business visa for prospective employment that would involve him travelling to the PRC.

43                  The information provided by the appellant to the RRT in connection with his application for review of the delegate’s decision clearly included the facts specified in items (i) and (ii) identified in [34] above. 

44                  The material provided to the RRT by the appellant did not expressly specify the date on which the appellant had arrived in Australia or the date on which he had lodged his application for a protection visa.  However, the appellant explicitly referred to his application for a protection visa at two separate points in his statutory declaration.  On the second occasion, he did so for the purpose of explaining the delay in lodging that application.  Since the appellant’s application to the RRT provided the number of his Departmental file, it would be an easy matter to ascertain the precise dates of the appellant’s arrival in Australia and of the lodgement of his application for a protection visa.

45                  In these circumstances, I think it can fairly be said that the information given by the appellant for the purpose of his application included the fact that he did not apply for a protection visa until April 2004, some five and half years after his arrival in Australia.  This conclusion is consistent with the policy considerations relied on by Merkel J in Al Shamry to support the view that the word ‘application’ in s 424A refers to the application in the RRT, not to the original application for a protection visa.  The appellant must have been aware of the fact that he had not applied for a protection visa until more than five years after his arrival in Australia.  Equally important, he was also clearly aware of the significance of that delay for the acceptance of his claim to fear prosecution in the PRC at the hands of the NSB.  Parliament could hardly have intended that the RRT had to draw these matters specifically to his attention in writing as a condition of the validity of the RRT’s decision.

46                  For those reasons, I do not think that the RRT breached s 424A(1) of the Migration Act.  The Magistrate did not err in law in reaching the same conclusion. 

47                  There is no substance in the appellant’s ground of appeal which invokes s 425 of the Migration Act.  The invitation required by s 425(1) was extended to the appellant.  There was no evidence before the Magistrates Court to suggest that the appellant did not have the opportunity to give evidence and present arguments in the manner contemplated by s 425(1).

conclusion

48                  The appeal must be dismissed, with costs.

Associate:

Dated:              20 July 2005

The appellant appeared in person.