FEDERAL COURT OF AUSTRALIA

SZHYO v Minister for Immigration & Multicultural Affairs [2006] FCA 1554

MIGRATION – Protection Visa – whether Refugee Review Tribunal complied with s 424A of the Migration Act 1958 (Cth)  

Migration Act 1958 (Cth) ss 91R, 424A and 474

VEAJ of 2002 v Minister for Immigration Multicultural and Indigenous Affairs (2003)132 FCR 291, cited.

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195, cited.

SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006]FCA 238, cited.

SZGER v The Minister for Immigration and Multicultural Affairs [2006] FCA 1162, cited.

SZCCF v Minister for Immigration and Multicultural Affairs [2006] FCA 1089, cited.

SZEEU v The Minister for Immigration (2006) 150 FCR 214, cited.

SZHYO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD 1285OF 2006

SPENDER J

10 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed with costs. 

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Driver delivered on 21 June 2006 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 14 November 2005 and handed down on 6 December 2005.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, as the Minister’s title then was, refusing an application for a Protection (Class XA) Visa (‘a Protection Visa’) by the applicant.

2                     The grounds set out in the Notice of Appeal (which erroneously refer to Federal Magistrate Smith as the decision maker) are:

‘2. The Tribunal did not consider my application according to S91R of the Migration Act.  The Tribunal misunderstood my claims.

 3. The Tribunal failed to carry out its statutory duty.  The Tribunal failed to consider my application according to S.424A of the Migration Act 1958.

 4. Federal Magistrates Court did not fully consider the information provided for the review of my application.’

3                     The single ground in the amended application was that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’) because it failed to provide the appellant particulars of the information that the appellant gave the Department of Immigration and Multicultural Affairs (‘the Department’) in her application for the Protection Visa.  In oral submission to the Court the appellant, who appeared with the assistance of an interpreter, also alleged that the Tribunal was biased, was not fair, and did not have regard to all the documents which the appellant had submitted, and the decision of the Tribunal was made without sufficient evidence.

4                     So far as the findings of the Tribunal are concerned, the appellant, a citizen of the People’s Republic of China, had sought a Protection Visa on the ground that she had a well-founded fear of persecution based on the circumstance that she was a practitioner of Falun Gong.  The appellant claimed that she was an active organiser of Falun Gong assisting her husband, who was the head of Falun Gong in Liaoning Province of the People’s Republic of China.  She claimed that she had been arrested by the police at her husband’s office where their Falun Gong group met and detained for 12 days. 

5                     The Tribunal did not accept any of her claims relating to involvement in Falun Gong activities in the People’s Republic of China.  The reasons for this conclusion included a finding that her testimony was vague, lacking in detail, internally contradictory, and implausible.  There were other aspects of her accounts which the Tribunal found implausible or implausible and contradictory.  Amongst other reasons for that primary conclusion the Tribunal in particular found that it was implausible that she could have been detained for 12 days, and then return to her normal activities at work in a government office with no questions being asked of her.  The Tribunal also found reinforcement for its conclusion that her account of her activities in the People’s Republic of China was implausible in her failure to attend a Falun Gong practice group in Australia, and her lack of knowledge of Falun Gong activities in Australia. 

6                     The reasons for judgment of the Federal Magistrates Court show that in its judgment there was no failure to comply with s 424A of the Act.  The reasons for this conclusion of no breach of the requirements of s 424A is anchored in the opinion of the Court that while the claim in the Protection Visa to having been detained for 12 days provided a starting point for questioning the appellant at the Tribunal hearing, the claim of detention for 12 days in the Protection Visa application was not a reason for affirming the decision under review.  The lack of satisfaction by the Tribunal that the appellant had been detained for 12 days as she claimed was one of the reasons for the Tribunal’s decision.

7                     The Court also found that the Tribunal did not have any concern about inconsistency between the Protection Visa application and the claims at the hearing.  The Court concluded that the evaluation by the Tribunal of the appellant’s testimony was not ‘information’ which was required to be disclosed under s 424A(1) of the Act.

8                     In relation to the ground in her appeal which asserts that the Tribunal was in breach of s 91R of Act, there does not appear, in my judgment, to be any misconstruction of s 91R of the Act by the Tribunal, and there is no basis for the Court to interfere with the Tribunal’s factual finding as to the harm the appellant claims to have suffered.  The appellant’s own evidence was that despite her claim of arrest and detention for 12 days, the police and authorities in the People’s Republic of China had not caused her any harm.  I simply note that it would have been open to conclude that detention for such a period might constitute ‘persecution’ within the meaning of the Convention.

9                     Concerning the second and most relevant ground of the appellant’s appeal, which is directed at non-compliance with s 424A of the Act, Driver FM held, in par 5 of his Honour’s reasons for judgment:

‘The transcript satisfies me that there was nothing in the applicant’s protection visa claim of having been detained for 12  days, which was determinative of the outcome of her review application.  That claim simply provided the starting point for questioning of the applicant at the hearing.  (See the observations by Allsop J in SZEEU v Minister for Immigration [2006] FCAFC 2 at 227).’

His Honour in par 6 said:

‘What was determinative in giving rise to that credibility concern was the evidence given by the applicant at the hearing…’

His Honour said that he agreed with and adopted the following submissions made by the Minister:

‘The RRT was doing no more than evaluating a claim that had been made by the applicant. The RRT was not relying upon the fact that she had said that she was detained for twelve days as part of the reason for its decision.  It simply was not satisfied that she had been detained for twelve days.   This is not to use “information” (here the “information” that she was detained for twelve days) as part of the reason for the RRTs decision.  It is accordingly not a matter which, applying the principles in SZEEU v Minister for Immigration [2006] FCAFC 2, gave raise to an obligation to issue an invitation under s.424A(1).

Adopting the language of Smith FM in SZHMU v The Minister for Immigration [2006] FMCA 495 at [20], “the Tribunal’s reference to the contents of the applicant’s visa application shows at all times no more than an assessment of the merits of the claims of the applicant”.  That assessment falls within the third proposition in paragraph [24] of VAF v The Minister for Immigration (2004) 206 ALR 471, which was accepted in SZEEU.  See SZEEU at [18] - [20] per Moore J, and, more particularly, at [205] -[207] per Allsop J with whom Weinberg J relevantly agreed.’

10                  It is necessary to have regard with some precision to the terms of the legislation. Section 424A of the Act relevantly provides:

‘424A Applicant must be given certain information

(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)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(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)    that is non-disclosable information.’

11                  The Full Court has held that the ‘application’ that is referred to in s 424A(3)(b) is the application for review and not the initiating application for a visa:  SZEEU v The Minister for Immigration (2006) 150 FCR 214 (‘SZEEU’) per Weinberg J.

12                  The Tribunal’s obligation pursuant to s 424A extends only to particulars of the information which the Tribunal considers would be ‘the reason, or a part of the reason, for affirming the decision that is under review’.  It is necessary to look at the Tribunal’s express reasons for its decision in order to decide whether it considered any of the information in the applicant’s Protection Visa was a reason or part of the reason for affirming the delegate’s decision: VEAJ of 2002 v Minister for Immigration Multicultural and Indigenous Affairs (2003)132 FCR 291 at 41 per Gray J.

13                  When one looks at the reasons of the Tribunal, the reason for the Tribunal’s conclusion was that the material was inadequate to satisfy the Tribunal that the appellant had a well-founded fear of persecution.  The Tribunal said of that material that it was vague and lacked explanation for implausible claims and inconsistencies, these not being inconsistencies with the material in the Protection Visa application.  It is plain that where the reason for the Tribunal’s decision is its inability to reach a state of satisfaction as to the claim given the absence of sufficient material, s 424A(1) is not enlivened. 

14                  Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at 21 gave an analysis of the ‘information’ in which s 424A(1) operates.  His Honour said at par 29:

‘On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b), it must be that that information was the reason or part of the reason for the decision.  That is too simplistic an analysis. …Whilst in some cases an “unbundling” is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain.  The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state.  It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information.  The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited.  It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision.  It was the lack of the requested further assistance and explanation that was the reason.’

15                  That observation is directly relevant to the circumstances here.  It is not the information in the originating application for a visa, namely, the claim that the appellant had been detained for 12 days, that was the reason or part of the reason for the Tribunal’s decision. 

16                  In SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006]FCA 238 Allsop J said at par 12:

‘In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state.  The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain.  The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction.’

17                  Besanko J in SZGER v The Minister for Immigration and Multicultural Affairs [2006] FCA 1162 said at par 8:

‘The Tribunal could not be satisfied that the criteria for the grant of a protection visa were met because of a lack of information. The Tribunal’s conclusion was no more than, to use the words of Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29]:

“The evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation, which had been invited.”’

18                  Bennett J also followed the observations of Allsop J as to the information within s 424A in SZCCF v Minister for Immigration and Multicultural Affairs [2006] FCA 1089 at par 21 where her Honour said:

‘The basis for the Tribunal’s decision was that it was the unsatisfactory nature of the evidence before the Tribunal alone that was the reason for affirming the decision of the Delegate. That such information does not come within s 424A(1) has been reaffirmed in SZEEU v Minister of Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [223] to [224] and again in SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [12].’

19                  In SZEEU,Moore J at pars 18 and 19 was concerned with what constitutes ‘information’ for the purpose of s 424A.  His Honour said:

‘A convenient starting point in considering the arguments in relation to the flight information is the judgment of the Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs(2004) 206 ALR 471. In that matter, Finn and Stone JJ helpfully digested the cases concerning what constitutes "information" for present purposes. Their Honours said (at [24]):

there is now a considerable body of case law concerned with the compass of the term “information” in its s 424A(1) setting. The following propositions emerge from it:

(i)        the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; [(2003) 129 FCR 168];

(ii)      the word “information” in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] – [22]; and

(iii)     the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; approved [2002] 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].

The application of these principles in that matter is illuminating. In its reasons for decision, the Tribunal had referred to aspects of the appellant's conduct in Australia which, seemingly, did not reflect the conduct of a person who had a well-founded fear of persecution. One aspect of the conduct was the appellant's tardiness in applying for a protection visa. All members of the Full Court concluded that these matters constituted information, though Finn and Stone JJ (Merkel J dissenting) concluded that it was not information that formed part of the reasons for affirming the decision of the delegate.’

20                  Allsop J in SZEEU said at pars 204 – 207:

204            The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision.

205            Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd ed, 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs[2000] FCA 1109 at [3], approved in VAFat [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].

206            Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tinat [54], Paulat [95] and VAFat [24]. In this respect, it is relevant to recall the root of the word “information”: that of which one has been told or apprised, or informed. The distinction can become fine: Paulat [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c).

207            The word “information” has been said not to encompass or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2002) 124 FCR 276 at [26]-[29], cited in VAF at [24]. It will be necessary in due course to explain the limits of this expression of view.’

21                  With respect to the third ground, whether the Court failed to consider information, no particulars are provided of this ground.  It expresses disagreement with the outcome of the review by the court.  In my opinion it impermissibly seeks merits review.  No error of law is established.

22                  In respect of the oral allegations raised by the appellant in this Court, the allegation of bias and failure to consider all of the material which the appellant submitted to the Tribunal are raised for the first time. They are not particularised. They were not consequently before the Federal Magistrate and provide no basis for impeaching his decision.  In the absence of particulars in any event, the allegations cannot be accepted as correct.

23                  In my judgment the reasons of Driver FM reveal no error.  No ground of review which amounts to jurisdictional error is established.  The decision of the Tribunal is therefore a decision which falls within the statutory description in s 474 of the Act as a ‘privative clause decision’. 

24                  For the reasons I have set out above, the appeal should be dismissed with costs.

25                  The appeal is dismissed with costs.

Associate:

Dated:         16 November 2006