FEDERAL COURT OF AUSTRALIA

SZIWJ v Minister for Immigration and Multicultural Affairs [2006] FCA 1706

MIGRATION – whether RRT constructively failed to exercise jurisdiction – whether RRT addressed explicit claim to consider evidence cumulatively – whether RRT failed to consider whole of material – no jurisdictional error – appeal dismissed 

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 followed

Coulton v Holcombe (1986) 162 CLR 1 referred to

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 referred to

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 cited

Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 followed

Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401 referred to

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 cited

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 followed

SZIWJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD2040 OF 2006

JACOBSON J

27 NOVEMBER 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellant pay the First Respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

Introduction

1                     This is an appeal from a decision and orders of Federal Magistrate Nicholls given on 26 September 2006 dismissing an application for review of a decision of the Refugee Review Tribunal dated 9 May 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

2                     The claim for protection which was the subject of the application before Federal Magistrate Nicholls was the second claim for protection made by the appellant.  The initial claim for protection was made in 2001 and was rejected by a delegate of the Minister.  That decision was affirmed by a differently constituted Tribunal in 2002.

3                     The only issue which arises on the appeal is whether the second Tribunal constructively failed to exercise jurisdiction either by failing to consider the appellant’s claim cumulatively or by failing to consider the whole of the material put before it.  In this respect the appellant relies in particular upon submissions which were put to the Tribunal in writing by the appellant’s then legal adviser after the conclusion of an oral hearing before the Tribunal.

Background

4                     The appellant is a citizen of the People’s Republic of China.  She first arrived in Australia on 5 August 2001 on a false Korean passport.  It appears that an agent prepared and lodged an application for a protection visa on her behalf.  On 6 November 2001 a delegate of the Minister decided not to grant a visa and on 29 November 2002 the Tribunal affirmed the delegate’s decision.  The appellant remained in Australia until she was removed to China on 15 February 2005.

5                     On 24 August 2005 the appellant re-entered Australia on a second Korean passport.  This passport, like the first one, was also a false passport.  The appellant was detained on 22 December 2005 at the Villawood Detention Centre.  She remains in detention at the time of this hearing.

6                     On 13 January 2006 the appellant made her application for the protection visa which is the subject of the present proceedings.  On 1 February 2006 a delegate of the Minister decided not to grant the visa.  The appellant’s application to the Tribunal for a review of the decision was made on 7 February 2006.  As I have already said the Tribunal affirmed the delegate’s decision refusing the grant of a visa on 9 May 2006.

Findings of RRT

7                     Before recording its findings and reasons the Tribunal set out the claims made by the appellant.  It did so in considerable detail. 

8                     The Tribunal also recorded in its decision some parts of the post hearing submissions made by the appellant’s legal adviser.  In particular, the Tribunal noted that the adviser stated in those submissions that as a former practitioner of Falun Gong the appellant was at risk of serious harm, and that she was also at risk of harm as a relative of practitioners of Falun Gong. 

9                     The portion of the written submissions set out by the Tribunal included a statement made by the adviser as follows:

These factors on their own may not amount to a claim for asylum, but cumulatively they create a profile in [the appellant] which has exposed her to harm and ongoing harassment because she is imputed with association and participation in Falun Gong.

10                  In its statement of findings and reasons the Tribunal commenced by stating that the appellant’s claims could be summarised in the way set out in a number of bullet points.  The Tribunal stated that the appellant had given a number of reasons why she considered that she had a well-founded fear of persecution from the Chinese authorities upon the ground of her imputed involvement in Falun Gong.  These reasons were then summarised in five bullet points.  They were as follows:

§         Her sister and sister’s husband were deeply involved in Falun Gong up until March 2000 when they committed suicide as a result of the authorities’ crackdown on Falun Gong.

§         When the authorities questioned the Applicant on her return to China in February 2005 she confessed to them that whilst she was in Australia she had lodged an application for a protection visa on the basis of an involvement with Falun Gong.

§         When she returned to China in February 2005 members of Falun Gong Association attempted to contact with her by sending text messages dropping leaflets in her letterbox etc and these communications came to the notice of the Chinese authorities and

§         Chinese officials in an attempt to meet their quotas would in any event be indifferent to the truth of her association with Falun Gong.

§         She practised Falun Gong prior to the crackdown in 1999

11                  It is important to note that this was not an exhaustive statement of the detailed claims. 

12                  The Tribunal went on to say that it did not accept that the appellant was subject to ongoing harassment or detention by the Chinese authorities after she was deported back to China in February 2005 upon the basis of being a suspected associate of Falun Gong.  This was a rejection of a significant factual plank in the appellant’s present argument that the Tribunal failed to consider her claims cumulatively.  The Tribunal observed that it did not accept the Appellant’s suggestion that the payment of a bribe had ensured the re-issuing of a Chinese passport at a time when the appellant was allegedly under investigation and subject to detention by the authorities.  This was apparently a significant part of its reasons for this finding.

13                  Nor did the Tribunal accept that when the appellant returned to Australia in August 2005 she did so for the purpose of seeking protection against harm feared from the Chinese authorities.  The Tribunal pointed to what it called the appellant’s modus operandi which was that she obtained and used false documents for the purpose of working and remaining in the country until she was detected.  The Tribunal considered that this was inconsistent with a genuine fear of harm from the Chinese authorities.

14                  The Tribunal then made a broad finding that it did not accept that the appellant had been imputed to be an associate of Falun Gong by the Chinese authorities because it did not accept as “plausible or credible” the basis upon which the claim of imputed involvement with the Falun Gong was said to have occurred. 

15                  The Tribunal expressed reservations about the appellant’s claim that her sister committed suicide by reason of the crackdown on members of Falun Gong but, in any event, the Tribunal did not accept that, even if there was a causal nexus, that it resulted in any ongoing adverse attention to the appellant.  The Tribunal gave a number of reasons for this.  The Tribunal pointed to the fact that nothing flowed from the questioning of family members following the death of the appellant’s sister in March 2000.  The Tribunal said that it followed that when the appellant came to Australia for the first time in August 2001 she came on her own account in order to work in Australia and that when she sought a protection visa in 2001 she regarded it as merely a convenient vehicle to enable her to stay in Australia to earn money. 

16                  I should pause here to add that there was material in the transcript of the hearing before the Tribunal which was put before me at the hearing of this appeal that supported that finding.  I will not set out the relevant parts of the transcript but they appear at pages 3 and 4 of the transcript of the hearing of 9 March 2006.  Thus the Tribunal did not accept that the events of 2000 gave rise to a well-founded fear of harm at the present time.

17                  Broadly, the Tribunal did not accept that the appellant had told the Chinese authorities when she returned to China in February 2005 that she applied for a protection visa in Australia on the basis of an association with Falun Gong.  The Tribunal gave reasons for this which are not necessary to repeat in my reasons for judgment. 

18                  The Tribunal also rejected the claim that the appellant was contacted by Falun Gong practitioners by text messages and by leaflets after she returned to China in February 2005.  The Tribunal did not accept as plausible that Falun Gong practitioners would seek to contact the appellant in this way.  The Tribunal accepted that the appellant had no personal involvement in Falun Gong while she was in Australia but it did not accept that any involvement she may have had prior to the crackdown in 1999 would result in her facing harm on her return to China in 2006. 

19                  The Tribunal went on to say that “for all the reasons outlined above” it did not accept that the appellant had a well-founded fear of persecution upon the ground of an imputed Falun Gong profile.  It said that in “light of the foregoing and in the absence of any political activity on the part of the [appellant]” the Tribunal did not accept that on her return to China she faced harm for reason of any imputed political opinion.  It also said, accordingly, that it was not satisfied the appellant had a well-founded fear of persecution.

20                  In its conclusion the Tribunal said that “having considered the evidence as a whole” it was not satisfied that the appellant was a person to whom Australia owed protection obligations.  It therefore found that the appellant did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) for the issue of a protection visa.

Decision of Federal Magistrate

21                  The Federal Magistrate set out at [9] the three grounds of review which were raised before him.  They were that the Tribunal failed to apply the correct test, that it unreasonably rejected the claims and that it did not consider whether the appellant had a well-founded fear of persecution if she returned to China.  The learned Federal Magistrate said at [24], when dealing with the unreasonableness ground, that there was “nothing in the material to show that the Tribunal misunderstood the claim made by the [appellant] nor that it dealt with a claim different to that which she had put forward”.

22                  The learned Federal Magistrate also considered the question of whether there was a breach of s 424A of the Act.  Counsel for the Minister fairly raised that matter before the Federal Magistrate because the appellant was then unrepresented.  The learned Federal Magistrate found that there was no breach of that section.  He came to the view at [33] that no jurisdictional error could be discerned on the part of the Tribunal. 

Grounds of Appeal

23                  The grounds of review which the appellant seeks to raise in her amended notice of appeal do not appear on their face to be within the grounds that were raised before the Federal Magistrate.  However, I think it is arguable that they fell within the unreasonableness ground and, in any event, counsel for the Minister disclaimed any prejudice to the Minister by the raising of these grounds on appeal.  Accordingly, applying the principles stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] to [48], I would be prepared to grant leave to the appellant to raise the grounds on the appeal.  That, of course, is not to say that amended grounds could be raised on appeal if the principles referred to by the High Court in Coulton v Holcombe (1986) 162 CLR 1 at 7-8 are infringed.

24                  The appellant’s argument in support of the appeal was put by counsel on two bases; he said, firstly, that an explicit claim made by the appellant’s solicitor was not addressed.  This is the claim that the grounds upon which the profile was to be imputed were to be considered cumulatively.  The second basis upon which the appellant’s counsel argued the case was that there was an obligation to consider all of the evidence as a whole. 

Discussion

25                  The principles relied upon by the appellant were stated by the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] and [95].

26                  The principle is that there will be jurisdictional error if the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying on established facts”.  This may amount to a constructive failure to exercise jurisdiction.  This principle was referred to by a Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55].  The court also referred at [57] to the nature of the review function as described by Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]; this is that the tribunal is to consider all of the component integers of the appellant’s claim.

27                  The essence of the appellant’s argument was that there was nothing in the Tribunal’s reasons to show that it had dealt with the question of how the Chinese authorities would deal with a person of the appellant’s profile upon her return to China.  Counsel for the appellant submitted that the Tribunal had not dealt with objective facts that formed part of the appellant’s claimed Falun Gong profile.

28                  The starting point for consideration of the appellant’s arguments seem to me to be conveniently addressed in a decision of a Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] to [47].  The Full Court there observed that:

It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.

29                  Their Honours pointed out that there is a distinction between the tribunal failing to advert to evidence which, if accepted, might lead to a different finding, and a failure by a tribunal to address a contention which, if accepted, might establish that the applicant has a well-founded fear of persecution for a Convention reason.  Their Honours observed at [47] that the “inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons”.  However, that is an inference which will not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

30                  It is therefore important to note, as I have already pointed out, that the Tribunal expressly recorded the appellant’s adviser’s post hearing submissions which stated that the factors relied upon by the appellant may not of themselves amount to a claim for asylum but that cumulatively they created a profile of an imputed association with Falun Gong.   It seems to me to follow from this and also from the lengthy statement of the appellant’s claims in the Tribunal that the reasons given by the Tribunal must be read in light of those two factors; that is to say the issue which the appellant now seeks to agitate was expressly referred to by the Tribunal before it gave its findings and reasons, and the findings are therefore to be informed by that fact.

31                  The appellant relied upon the decision of Moore J in Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401.  That case was referred to with apparent approval by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48].  Kaur was a case in which it was argued that the tribunal considered each of the facts put forward by the applicant in isolation but failed to consider their cumulative weight.  His Honour accepted that this may amount to constructive failure to exercise jurisdiction.  His Honour cited a number of authorities in support of that proposition. 

32                  I should mention that in the present case the Minister’s counsel concedes that if there was a failure to consider the facts cumulatively then there would be demonstrated jurisdictional error.

33                  However, it seems to me that in the present case upon a fair reading of the Tribunal’s reasons it did not compartmentalise the appellant’s claims in the manner submitted by the appellant’s counsel.  Rather, in my view, the Tribunal did consider the claims cumulatively and did consider all of the integers of the appellant’s claims.  In particular, I would point to three factors to support that view; firstly, the Tribunal identified the issue as submitted by the appellant’s legal adviser, secondly, there seems to be a comprehensive treatment of the claims which were identified in some detail, thirdly, the Tribunal appears to me to have dealt with all of the factual bases of the claim, that is to say the critical bases upon which the claim is put.

34                  Mr Potts for the Minister relied in particular upon the statements in the Tribunal’s reasons including the reference to “all the reasons” and the conclusion which stated that the Tribunal had considered the “evidence as a whole”.  The use of these expressions should not be considered to be a verbal formula or a substitute for a fair reading of the whole of the Tribunal’s reasons. 

35                  However, in the present case, for the three reasons that I have mentioned above, I consider that the Tribunal dealt with all of the integers of the claim and that the facts put forward to support the profile were considered cumulatively.  Indeed, that was the view which was eventually reached by Moore J in Kaur at [13] to [15].  It seems to me that the reasons given by the tribunal in Kaur pointed more strongly in the direction of a compartmentalised consideration of the claims than appears in the present case.  

36                  In my view the present case falls within the approach taken by Finkelstein J in Jegatheeswaran at [49].  His Honour observed that the separate treatment of the incident relied on in that case did not indicate that the tribunal failed to look at the case in its entirety.  His Honour remarked that the tribunal stated that it reached its conclusion “[h]aving considered the evidence as a whole” and that there was no reason to doubt the statement.  In my view that is apt in the present case.  Sundberg J agreed with the reasons given by Finkelstein J.  The reasons of Emmett J at [23] are also consistent with this approach.

37                  I reject the submission put by counsel for the appellant that the Tribunal failed to address a contention.  I do not think the appellant’s argument is supported by what was said in Applicant WAEE at [44].  The present case falls for consideration upon a fair reading of all of the reasons of the Tribunal.  I have already given my views on that question.

Conclusion

38                  In my view it follows that the orders to be made are that the appeal be dismissed with costs.

Associate:

Dated:         27 November 2006