FEDERAL COURT OF AUSTRALIA
SZILQ v Minister for Immigration & Citizenship [2007] FCA 942
Migration Act 1958 (Cth) s 91R(3), s 422B, s 424A, s 425(1)
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107
SZILQ v Minister for Immigration & Anor [2007] FMCA 483
SZILQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 788 OF 2007
BUCHANAN J
27 JUNE 2007
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 788 OF 2007 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
SZILQ Appellant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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BUCHANAN J |
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DATE OF ORDER: |
27 JUNE 2007 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The appeal is upheld;
2. Orders 2 and 3 made by the Federal Magistrates Court on 16 April 2007 are set aside;
3. The decision of the Refugee Review Tribunal handed down on 14 November 2006 is quashed;
4. The application for review of the decision made by a delegate of the first respondent to refuse to grant the appellant a protection (class XA) visa is remitted to the Refugee Review Tribunal to be dealt with according to law;
5. The first respondent is to pay the costs of the applicant in the Federal Magistrates Court in the proceedings under appeal and in the present appeal to this Court, in each case as taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 788 OF 2007 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
SZILQ Appellant
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AND: |
MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
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JUDGE: |
BUCHANAN J |
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DATE: |
27 JUNE 2007 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
BUCHANAN J:
1 The background to the present appeal is summarised in written submissions for the first respondent (the Minister) as follows:
‘1. This is an appeal from a judgment of Smith FM, given on 16 April 2007, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) handed down on 14 November 2006. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant the appellant a protection visa.
2. The appellant is a citizen of the People’s Republic of China.
3. The appellant arrived in Australia on 22 June 2004.
4. The appellant lodged an application for a protection visa on 29 November 2005.
5. By letter dated 16 December 2005, a delegate of the Minister wrote to the appellant to inform him that his application for a protection visa had been refused. The delegate concluded that:
a) the appellant’s fear of harm on the basis of the one-child policy in China did not constitute persecution for a Convention reason; and,
b) the appellant’s fear of harm on the basis of his belief in Christianity was not well-founded.
6. On 18 December 2005, the appellant lodged an application for review of the delegate’s decision with the Tribunal.
7. The appellant was invited to attend a hearing before the Tribunal to be held on 6 February 2006. The invitation was accepted. The appellant and his advisor attended the hearing.
8. On 17 February 2006, the Tribunal affirmed the decision not to grant a protection visa to the appellant.
9. The appellant lodged an application for judicial review of the decision of the Tribunal with the Federal Magistrates Court.
10. On 13 July 2006, Raphael FM made orders, by consent, quashing the decision of the Tribunal and remitting the matter to the Tribunal to be determined according to law.
11. By letter dated 3 October 2006, the Tribunal wrote to the appellant to invite him to comment, by 10 October 2006, on adverse information that was before the Tribunal. The appellant, through his advisor, replied on 19 October 2006.
12. By letter dated 25 October 2006, the Tribunal again wrote to the appellant to invite him to comment, by 1 November 2006, on the adverse information that was before the Tribunal. An extension of time was granted by the Tribunal until 3 November 2006. The appellant, through his advisor, replied on 3 November 2006 and forwarded a number of documents to the Tribunal.
13. On 14 November 2006, a differently constituted Tribunal affirmed the decision not to grant a protection visa to the appellant.
14. On 15 December 2006, the appellant lodged an application with the Federal Magistrates Court for judicial review of the decision of the Tribunal. An amended application was filed on 10 February 2007. A further amended application containing four grounds of review was filed at the hearing on 26 March 2007.
15. On 16 April 2007, Smith FM dismissed the application for judicial review.
16. On 7 May 2007, the appellant lodged a notice of appeal with the Federal Court of Australia.
17. The sole ground of appeal is that Smith FM erred in finding that the Tribunal had not fallen into jurisdictional error by making a finding under s 91R(3) of the Migration Act 1958 (Cth) (“Act”) in relation to the appellant’s conversion to Christianity without having any evidence of such a finding and without having put such an allegation to the appellant.’
(headings and footnotes omitted)
2 Section 91R(3) of the Migration Act 1958 (Cth) (‘Act’) reads:
‘(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) 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.’
3 The appellant claimed that he faced persecution in China. The basis of his claims was summarised by the delegate who first dealt with, and refused, his claim for a protection visa in the following way:
‘In summary, the applicant claims that he and members of his family are Christians. He claims that in 2002, he and some others wanted to renovate the town’s church but were refused permission to do so by the PSB. Instead, the PSB decided to demolish the church. When they came to do so, the applicant and others argued with them. Thirty or forty people were arrested after they fought with the authorities, throwing bricks, in an attempt to prevent them from demolishing their church.
The applicant was not arrested on this occasion. However, the PSB came to his house a few days later looking for him. They were unable to find him. They came to his house a second time and arrested him. He was detained for seven months.
The applicant claims that he was being taken to court for sentencing and managed to escape. He was later re-arrested and sentenced to six years imprisonment. While he was being taken from the court, he escaped again. He hid in different places until he was able to come to Australia.
The applicant claims that he was arrested for two reasons. Firstly, for the events that took place when the group did not want their church to be demolished. Secondly, he has three children and this is not allowed under the country’s one-child policy. He now fears that if he returned to China, the PSB would gaol him for a very long time. He claims that the authorities of his country will not protect him as they want him arrested.’
4 It was clear from the delegate’s decision under review that rejection of the appellant’s claims did not depend on rejection of his claim to be Christian. The delegate said:
‘[I]n the absence of evidence to the contrary, I am prepared to accept that his fear of harm is for reason of his religion and will address his claims accordingly.’
5 However, the delegate concluded that the appellant was not sought in China, or likely to be harmed, for reason of his religion. The delegate said:
‘Having examined the applicant’s case, I am not satisfied that his claimed fear of harm for reason of his religion is well-founded. I consider that if the applicant had truly fled China in fear of persecution, he would have lodged his application for a Protection visa immediately upon, or at least soon after, his arrival in Australia. Instead, he waited for almost a year and a half before making application. He only did so after having been detained by officers of the Department. In my view, this is not the action of someone fleeing his or her country in fear of persecution for a Convention reason. His delay in applying for protection leads me to have serious doubts about the veracity of his claim that he may be harmed upon return to China for reason of his religion.
The circumstances surrounding the applicant’s departure from China are also relevant in determining the chance of him facing harm. While past experiences are not necessarily an indication of future events, they are a useful starting point in assessing whether there is a real chance of a person facing harm upon return to China. In this regard, I note that the applicant was able to obtain a passport in his home-province of Fujian in 2003 without any difficulty. Therefore, the issue of his passport occurred after he came to the attention of the authorities in 2002. His passport was evidently never confiscated by the authorities nor cancelled at any stage. He used this document to obtain an Australian visa and depart the country. He managed to leave the country legally through Shanghai in his own name and photographic identity, despite his claim that the authorities had sentenced him to six years imprisonment and that he had escaped from custody while being taken from the court.’
and
‘I am not satisfied that the applicant is wanted by the authorities as he claims. Chinese nationals are very closely monitored and vetted by the authorities of their country. While I am aware that in some cases, PSB officials have assisted persons in obtaining travel documents, I consider it implausible that a person who has been convicted of a crime and subsequently sentenced to a lengthy term of imprisonment would have been granted an exit visa. His claim that he escaped from custody means that the likelihood of him being able to leave the country without alerting the attention of the authorities is remote.’
and:
‘I do not accept that the applicant is wanted as he claims. I consider that the authorities could have, and would have, prevented his departure from China if they considered him to be of adverse interest. It is implausible that he would be granted a visa and allowed to depart the country if he was wanted by the authorities as he claims. I find that his claimed fear of Convention related harm is not well-founded.’
6 No part of the appellant’s claims, as originally advanced, relied upon events in Australia. After the delegate refused his claim for a protection visa the appellant sought a review of that decision by the Refugee Review Tribunal (‘the RRT’) constituted under the Act. He took the opportunity, through the services of a migration agent, to make written representations to the RRT in support of his application for review. Although these representations make some reference to s 91R of the Act (but not to s 91R(3)) there is no mention in them of any events, or any conduct of the appellant, in Australia.
7 At the hearing before the RRT which took place on 6 February 2006 the appellant was asked some questions apparently for the purpose of testing his claimed adherence to the Christian faith. The RRT was not bound to accept, as the delegate had, the appellant’s claims to be a Christian although it is far from clear, bearing in mind the reasons given by the delegate for refusing the appellant’s claims for a protection visa, why it was thought necessary to explore the matter. The appellant suggested at one point (in answer to a question about his present religious practices) that he read the Bible every day in detention. A little later he was asked questions which touched directly upon his religious observance in Australia.
8 The following exchanges occurred:
‘TM You claim that you are a Christian and your family have been Christians for several generations. Is that correct?
MR S Yes.
TM Are you a devout Christian?
MR S It’s been for several generations already.
TM When did you become a Christian?
MR S I went to the Church with my grandparents when I was a child.
TM What does being a Christian mean to you?
MR S To be a good person. A true believer in God.
TM Have you been baptised?
MR S What baptised?
TM Have you ever been baptised?
MR S What is baptism?
TM You don’t know what baptism is?
MR S Yep.
TM How often do you read the Bible?
MR S You want me to read a book?
TM No, no. Have you read the Bible?
MR S Yes. Even read the book in the detention centre every day. I got the book.
TM Sorry, you also have a book?
MR S Have a book. Given by people who can put a detention centre because of the service.
TM Tell me about your Church in China. How often did you go to Church in China?
MR S When I was a child I went to the Church more often. After I grew up I don’t go to the Church when I have time on Sundays.
TM How many members were there of your Church?
MR S Many.
TM How many?
MR S Normally Sundays about 100 people.’
and:
‘TM What services were held at the Church before it was demolished?
MR S After it was demolished we went to appeal to the Government … to the upper level. The process took a long time.
TM What happened at the Church services that you attended in the Church?
MR S I was a member of the Church in my village … many people members.
TM What actually happened at the services that were held at the Church? What happened during the services?
MR S I went to the Church for the service. Sometimes we talk about… sometimes we talk about renovating and rebuilding of the Church.
TM Did you have a formal role in the Church?
MR S No.
TM And you arrived in Australia on the 22nd of June 2004 and other than 2 weeks in detention in August 2005 you were in the Australian community for over 16 months before you were detained in November 2005. Did you go to Church in Australia over this period and if so, how often, where and who was the Pastor?
MR S I went to Cabramatta, Western Sydney.
TM How often did you go to Church in those 16 months?
MR S Normally Sunday before going shopping I go inside the Church.
TM Who was the Pastor or Priest?
MR S Who was the Pastor? I didn’t ask. I went with my friend who was called … He wrote down his name. It’s Linhuh. I went to Church with this person
TM How many times did you go to Church over the 16 months before you were detained?
MR S When I was outside the detention centre I went to … most of time I went to the Church with Linhuh.
TM How often did you go?
MR S 10 times. Over 10 times.
TM What happened at the services you attended?
MR S Went there for the Sunday service and I have lunch there. Then I leave. After the lunch I would go.
TM Tell me about the gospel message and why Christ came into the world.
MR S He came to the world for the sins of us.
TM Who was John the Baptist and what did he do?
MR S Preaching.
TM How many gospels are there and who wrote them?
MR S It was written by Jesus.
TM How many are there?
MR S Don’t remember.
TM What’s said in them?
MR S Don’t remember after reading the book I forget.
TM What happened at the last meal Jesus had with His disciples before He was arrested and killed?
MR S After that we …
TM Sorry?
MR S After Jesus.
TM But what happened at the last meal that Jesus had with His disciples?
MR S They say that Jesus has done something wrong and they wanted to arrest Him but actually He did not do that and my memory … very often I cannot remember.’
The questioning then moved back to the events in China.
9 In the earlier RRT decision, which was set aside by Raphael FM by consent, the RRT referred (by way of paraphrase) to the questions and responses I set out earlier and then said:
‘The Tribunal finds that the Applicant’s answers to the questions put to him were evasive and uninformed, and reveal no knowledge about the Christian faith or church life in China. Indeed, the Tribunal is satisfied that if the Applicant had been a Christian in China, then he would have provided the Tribunal with considerably more information about his involvement in a range of religious activities such as prayer meetings, Bible studies, and church services (and what occurred in them such things like as hymn singing, communion, sermons from priests or pastors, reading from the Bible) and the like and would have made even some attempt to articulate his faith. Moreover, and has already been noted above, the Applicant does not provide any evidence to support his claims that he was a Christian in China such as a letter from a priest or pastor, or even from another member of the church in China. In short, the Tribunal is satisfied from the Applicant’s vague and unsupported claims that reveal not only no knowledge of the Bible or his church, and more importantly no knowledge and awareness of the basic tenants [sic] of the Christian faith or even interest in Christian matters, that he was not a Christian in China or had any involvement with the Christian church in China, and the Tribunal does not accept these claims. Nor does it accept the claims that flow from this including that because he was a Christian he was persecuted in China or, more specifically, that as he claimed at the beginning of the hearing, he has been persecuted in China due to his religious beliefs and for this reason they are looking for him to arrest him.
10 That decision, once set aside, must be treated, for all purposes, as though it does not have any operative effect. It does not represent the performance by the RRT of its functions in connection with the review (see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (‘Bhardwaj’); SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 (‘SZEPZ’) (at [39]).
11 The RRT, as reconstituted, wrote to the appellant on 3 October 2006 inviting him to comment on three issues that might lead to the application for review being decided against him (see s 424A of the Act). They concerned the apparent ease with which the appellant had obtained a passport and left China, his delay in applying for a protection visa even when taken into detention and inconsistencies between statements in his application for a protection visa and his evidence before the RRT on 6 February 2006 about his arrest, detention and escape in China. They did not concern any question concerning his claimed adherence to the Christian faith. This letter told the appellant that the new member constituting the RRT would listen to the tape of his evidence on 6 February 2006.
12 The appellant sought a fresh hearing. By a further letter dated 25 October 2006 the RRT informed the appellant that it would not give him a further hearing. It required his response, if any, by 1 November 2006 but subsequently agreed to an extension to 3 November 2006.
13 On 3 November 2006 the appellant’s migration agent made some further representations and sent copies of five documents. None of the representations or the first three documents was concerned with the appellant’s conduct in Australia. The documents were identified as follows:
‘The Applicant is forwarding further documents for the Tribunal’s consideration:
Attachment A – Copy of Letter from Fujian Lianjian Christian Baisheng Church.
Attachment B – Copy of Baptism certificate from Baisheng Church.
Attachment C – Copy of one of the fines paid in relation to the Applicant’s second Child.
Attachment D – Copy of newspaper article that name the Applicant as one of the persons on a hunger strike at Villawood Immigration Detention Centre in protest for the arrest in China of Gao Zhicheng.
Attachment E – Copy of letter from Hillsong Church.’
14 Attachment E reads as follows:
‘Re: Support letter for [the appellant]
I am writing on behalf of [the appellant] at the Villawood Immigration Detention Centre, regarding of his status to remain permanently in Australia.
Our team from the Hillsong Church, had been conducting Sunday Church services and a mid week bible studies in the Centre, of which [the appellant] had been regularly attending during the inside the Detention.
My understanding is that he had been in the country for quite some time, and detained in Villawood over a year. I had a privilege of baptizing him at the centre, and quite encouraged to see how his faith had grown tremendously.
[The appellant] appeared to me, as an humble, gentle and well mannered person. As a team, we wish and pray for a favourable outcome on his hearing of the case.
Any information, please feel free to phone me on [xxxxx] at any time convenient to you.
Yours sincerely,
[xxxx xxxxxxx] 22/9/06
(Pastor)’
15 The migration agent did not state what particular use should be made of the new material. The responses to the RRT’s letter made no reference to the appellant’s practice of Christianity although Annexures A, B and C, which were attached without explanation, obviously concerned his claim to practice the Christian faith in China and it may be inferred that Annexure E was offered to establish that he continued, in Australia, to do so. However, the following was said, in support of a request for a further oral hearing:
‘It is submitted that a Hearing will provide the opportunity for the Applicant to:
…
ii) Fully explain the background and importance of the new information now being submitted since this information was not submitted to the previously constituted Tribunal.’
16 The RRT decision which is now under challenge commenced the statement of its material findings with a rejection of ‘all of his material claims’ on the basis that the appellant was not a credible witness, notwithstanding that his evidence was available only in a tape-recorded form and the member of the re-constituted RRT had not directly taken any evidence from him.
17 The RRT said:
‘The applicant’s claims are entirely dependent upon an acceptance of him as a credible witness. The applicant was not generally credible and the Tribunal does not regard the inconsistencies and other matters dealt with above as explicable in terms of any difficulty he faces as an asylum seeker. The Tribunal does not accept the applicant as credible and consequentially rejects all of his material claims.
18 The RRT also rejected the appellant’s claims to be an adherent to the Christian faith in China. The basis for this rejection, apart from any general issue of credibility, was the questions asked and the answers provided at the hearing on 6 February 2006. The appeal to this Court does not raise an issue about this specific matter. The debate in the appeal turns on two paragraphs in the RRT decision of 14 November 2006. They read:
‘The applicant during his evidence before the Tribunal in February 2006 stated that he read the Bible every day at the Detention Centre. He also produced a leaflet written in Chinese characters which he claimed had been given to him at a service at Villawood. On 3 November 2006 the applicant forwarded to the Tribunal a letter dated 22 September 2006 from Pastor [xxxxxx] from the Hillsong Church. The pastor refers to baptising the applicant at Villawood. As to whether circumstances have so changed since the applicant’s departure from China that now he could be said to have a well-founded fear of Convention related persecution, I accept that he has recently been baptised as a Christian in Australia. However, in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons the Minister must disregard any conduct engaged in by the person in Australia unless he or she satisfies the Minister that he or she engaged in the conduct otherwise then [sic] for the purpose of strengthening a claim to be a refugee (see section 91R(3) of the Act).
In the present case I am not satisfied that the applicant attended services and Bible studies and was baptised as a Christian in Australia (Villawood) other than for the purpose of strengthening his claim to be a refugee. I find that the applicant has involved himself in these Christian activities at Villawood for the sole purpose of enhancing his claim to be refugee. Given that I have not accepted that his Christian activities in Australia are genuine, and have found that the applicant was not involved in Christian activities in China, there is nothing to suggest he will continue to practice if he returns to China, nor that the baptism involvement with Christian services at Villawood Detention Centre will have any adverse consequences for him in China.’
(emphasis added)
19 The RRT had not put any questions to the appellant, either in written or oral form, the responses to which might provide any foundation for such a conclusively adverse finding about the appellant’s motivation in joining in the activities of the Hillsong Church. Nor can it have acted on the basis of other information known to it but not communicated to the appellant (see s 424A of the Act). There is no indication it made any other attempt to evaluate the content or veracity of the letter from the Hillsong Church although it seems an inescapable inference that the letter was regarded as insufficient or unreliable support for the appellant’s case. When regard is paid to the terms of that letter it seems to follow from the RRT’s findings that the pastor of the Hillsong Church must have been duped, if not a party to deception.
20 In his amended application for judicial review to the Federal Magistrates Court the appellant advanced four grounds. Excluding particulars given to support grounds 1, 2 and 4 they read as follows:
‘1. The Tribunal committed jurisdictional error by failing to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
2. The Tribunal committed further jurisdictional error by failing to notify the applicant, in the manner prescribed s 424A [sic] of the Act, of information which it considered to be part of the reason for affirming the decision under review.
…
3. The Tribunal committed further jurisdictional error by making a finding under s 91R(3) of the Act in relation to the applicant’s conversion to Christianity without having any evidence of such a finding and without having put such an allegation to the applicant.
4. The Tribunal failed to give the Applicant a proper hearing under s 425 of the Act.
…’
21 In his decision given on 16 April 2007 (SZILQ v Minister for Immigration & Citizenship [2007] FMCA 483) Smith FM rejected each of these grounds.
22 The appellant did not, in the appeal to this Court, challenge that part of the RRT decision which rejected his claim to have been an adherent to the Christian faith in China. The issues on the appeal are confined to matters concerning the significance of the appellant’s conduct in Australia. The appeal to this Court contains two formal grounds. Those grounds of appeal read as follows:
‘1. His Honour erred in concluding that the Second Respondent had not fallen into jurisdictional error by making a finding under sub-section 91R(3) of the Migration Act 1958 in relation to the Appellant’s conversion to Christianity without having any evidence of such a finding and without having put such an allegation to the Appellant.
2. Contrary to his Honour’s findings, it was not open to the Tribunal to reach the conclusion that it was not satisfied as required by sub-s 93R(3) without putting the Appellant on notice at a hearing that that was an issue in the case.’
23 The first ground suggests that the RRT had an obligation to put allegations about the appellant’s motivation to him. The second alleges the RRT was required to put him on notice that the question of his motivation was an issue in the case.
24 There is, in my view, some substance in the suggestion in the first ground of appeal that there was no apparent evidentiary foundation for the firmly adverse conclusion about the appellant’s motivation and the confident denouncement of his claimed religious beliefs. I do not accept, however, that there was a positive obligation on the RRT to put the allegation to him. Ultimately the burden under s 91R(3) lay on the appellant to satisfy the RRT about his motivation before the RRT was permitted to pay any regard to his conduct in Australia, which is the issue upon which the appeal has been focussed. The second ground of appeal cannot be sustained either, having regard to the terms of s 91R(3). It was, as I have said, ultimately a matter for the appellant to satisfy the RRT about his motivation.
25 However, in the light of the matters argued on the appeal, that does not dispose of the matters which now require the Court’s attention. Although I do not accept the suggestion in the grounds of appeal that the RRT had a positive obligation to alert the appellant to the fact that it might conclude it should disregard his conduct in Australia, there are two other questions which require consideration. One question is whether s 93R(3) implies an adequate opportunity to make a case about the purpose of conduct in Australia. Another question is whether the appellant was, in any event, entitled to a (further) hearing at which he might give evidence and present arguments (see s 425(1) of the Act) to attempt to satisfy the RRT that he should be permitted to rely on his conduct in Australia, and the letter from Hillsong Church, in support of his overall claims.
26 The argument put for the appellant on the appeal relied heavily on the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515; 231 ALR 592 (‘SZBEL’). In that case the evidence of an applicant, who had sought a review by the RRT of a decision of a delegate to refuse him a protection visa, was rejected in three identified respects by the RRT as implausible. These findings were essential elements in the decision by the RRT to affirm the delegate’s decision but they did not reflect the reasons given by the delegate for refusing a protection visa because two of these matters were not mentioned in the delegate’s decision. The High Court held that, upon a review of a decision of a delegate, matters not adequately notified by the decision of the delegate as reasons for refusal of a protection visa must, if they are to be used as reasons for the RRT to confirm the delegate’s decision, be sufficiently revealed to an applicant as live issues.
27 The reasoning in the High Court judgment was, in large measure, based on the requirements of the Act, in particular s 425(1), which provides:
‘(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.’
28 Thus, the High Court said (at [33] to [35]):
‘[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating tothe issues arising in relation to the decision under review”. The reference to "the issues arising in relation to the decision under review" is important.
[34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision‑maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review thatparticular decision, for which the decision‑maker will have given reasons.
[35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.’
(emphasis in original)
29 Its conclusion was:
‘[44] The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.’
30 However, it was emphasised that no universal requirement arose from the foregoing conclusions, which were based on an analysis of the particular issues in the case and close attention to how the RRT carried out the review in question. Thus, at [47] the High Court said:
‘[T]here may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.’
(emphasis in original)
31 In light of the fact that the appellant has not challenged that part of the RRT decision which rejected his claim to have been an adherent of the Christian faith in China, notwithstanding that the delegate accepted this part of the claim, the specific analysis in SZBEL does not apply directly to the present appeal. Moreover, in the present case the issue which is central to the appeal was identified by the terms of s 91R(3) itself. The RRT was not obliged to draw it to the appellant’s attention or to warn him that it would disregard material about his conduct in Australia if he did not satisfy the RRT that the reason for the conduct was genuine.
32 However, in my view, the principles stated in SZBEL about the operation of s 425(1) of the Act are nevertheless of some relevance to the issues which arise for consideration in this appeal. On the authority of SZBEL,where a matter is one of ‘the issues arising in relation to the decision under review’ s 425(1) of the Act requires an invitation to appear ‘to give evidence and present arguments relating to’ the issue. The question of the appellant’s motivation was obviously an issue in the case because, although he evidently wished his claimed practice of Christianity in Australia to be taken into account, s 91R(3) required his conduct in Australia to be disregarded unless he satisfied the RRT about his motivation. The opportunity to give evidence and present arguments at an oral hearing was not afforded in the present case in relation to that issue. The RRT took the view, following the Full Court decision in SZEPZ, that it was not necessary to conduct a further oral hearing because, as the review was a continuing one despite the earlier decision being set aside, a hearing had already been held. However, that mistakes the nature of the obligation under s 425(1). The RRT itself found it necessary to take a further step to comply with s 424A after the earlier decision was set aside. An additional element then emerged, in respect of which the appellant had not been given an opportunity to give evidence and present arguments at an oral hearing. In those circumstances the obligations under s 425(1) were not fully met.
33 Furthermore, it seems to me, in any event, to be an essential premise of s 91R(3) that an applicant have a proper opportunity to satisfy the RRT (or other person to whom the statutory instruction is directed) that the conduct in Australia which is said to be relevant was not engaged in just for the purpose of strengthening a claim to be a refugee. The present is not a case where it could be said that the appellant had said all he wanted to say, or had foregone an opportunity to put further material. The appellant’s migration agent had expressly requested an opportunity at an oral hearing for the appellant to deal further with the ‘new information’ which included material about his conduct in Australia. That opportunity was refused. It may not be necessary in every class of case for the appropriate opportunity to be given by way of an oral hearing. However, an opportunity in that form was necessary in the present case because of the requirements of s 425(1) of the Act.
34 Nothing I have said relates in any way to the merits of the appellant’s claims for a protection visa. The delegate, who accepted his claim to be Christian at face value, gave clearly expressed reasons for finding that the appellant did not have a well-founded fear of harm for a Convention reason. Why the RRT as earlier, or more recently, constituted found it necessary to express opinions about the appellant’s claim to hold particular religious beliefs in order to deal with his application for review of the delegate’s decision is not clear. The earlier observations did not, in the circumstances, serve to put the appellant upon proper notice of matters that might be taken into account against him, but they may, in part at least, explain why material relating to the appellant’s claimed practice of the Christian faith was forwarded to the RRT, even though its two letters of 3 October 2006 and 25 October 2006 did not raise any issue in that respect. The fact that those letters did not put the appellant on notice of that issue may have rendered the latest decision of the RRT vulnerable on that account. The point was not taken on the appeal and it is therefore not necessary to do more than mention the possibility without expressing any view about it. However, when the appellant’s attention turned to an attempt to make good his claim to be a Christian by reference to events in Australia it became necessary for procedures to be followed by the RRT which respected the necessity to afford him procedural fairness.
35 I am satisfied in this case that the RRT failed to afford procedural fairness to the appellant. The question is not foreclosed by s 422B (which codifies the ‘natural justice hearing rule’ for the purpose of the RRT proceedings) because the obligation to afford procedural fairness arose from the terms of, and interaction between, s 91R(3) and s 425(1).
36 The consequence of this analysis, and my view that the RRT acted outside its jurisdiction, is that I have come to a different view from Smith FM on one of the issues which he addressed. He regarded it as obvious on the evidence presented by the appellant that, in the context of the operation of s 91R(3), the RRT would find it necessary to make an assessment about whether it was satisfied about the appellant’s motivation. Smith FM said, as a result (at [58]):
‘I do not consider that procedural fairness required any specific warning as to how the assessment of his new evidence might be approached in terms of those legislative provisions.’
37 In my respectful opinion this conclusion gives insufficient weight to the necessity, in the first instance, to allow an applicant a proper opportunity to satisfy the statutory test in s 91R(3) and the obligation in s 425(1) to invite an applicant to a hearing to give evidence and present arguments about issues arising in relation to the decision under review. In my view an appealable error was made which ought be corrected.
38 As a result of my conclusions the appellant is entitled to orders to the effect that the appeal is upheld, the orders made by the Federal Magistrates Court are set aside and in lieu thereof it be ordered that the decision of the RRT under challenge be quashed. The result is that the review is again incomplete (see Bhardwaj). There may be a question whether it is strictly necessary to make a formal order that the review be carried out according to law because it must, obviously, be carried out in accordance with the Act, but relief in the nature of certiorari is regarded as ancillary in nature and so I will, for more abundant caution, make an order also in the nature of mandamus. The appellant should have his costs of the latest proceedings in the Federal Magistrates Court and in this Court and I will so order.
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I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan J. |
Associate:
Dated: 27 June 2007
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Solicitor for the Appellant: |
Mr M Jones |
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Counsel for the Respondent: |
Mr S Lloyd, Ms N McGarrity |
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Solicitor for the Respondent: |
Clayton Utz |
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Date of Hearing: |
7 June 2007 |
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Date of Judgment: |
27 June 2007 |
