FEDERAL COURT OF AUSTRALIA

SZFAR v Minister for Immigration and Citizenship [2007] FCA 1095

MIGRATION – denial of natural justice – inference and speculation – onus of proof falling to the appellant in s 91R(3) of the Migration Act 1958 (Cth)

Held: Appeal dismissed.

Migration Act 1958 (Cth), s 424A, s 91R(3)

Abebe v The Commonwealth of Australia (1999) 197 CLR 510 referred to

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 referred to

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 referred to

NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 followed

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 referred to

SAAS v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 182 referred to

SAAS of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 340 referred to

SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 followed

SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 229 ALR 423 followed

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 referred to

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 followed 

VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 referred to

SZFAR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 63 OF 2007

COWDROY J

18 OCTOBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.

2.                  The Refugee Review Tribunal be joined as Second Respondent to these proceedings.

3.                  The appeal be dismissed.

4.                  The Appellant pay the costs of the First Respondent in the sum of $5000 pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules 1979 (Cth).

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 Lloyd-Jones FM of 22 December 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down 7 October 2004. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) to refuse to grant the appellant a protection visa.

2                     The appellant who claims to be a citizen of the People’s Republic of China (‘the PRC’) arrived in Australia on 9 April 2002 holding a Preferential Relative (Migrant) visa. On 11 May 2004 the visa was cancelled by the Department of Immigration and Multicultural Affairs (‘the Department’) on the grounds that the appellant had provided false information in support of his application. The appellant sought judicial review of such decision and on 19 December 2003 the Migration Review Tribunal (‘the MRT’) affirmed the Department’s decision to cancel the appellant’s visa.

3                     On 10 February 2004 the appellant lodged an application for a Protection (Class XA) visa which was refused by the Department on 11 May 2004. The appellant applied for review of such decision to the Tribunal on 2 June 2004.

4                      The appellant claimed to have a well founded fear of persecution based on his political opinions and involvement in a pro-democracy movement in the PRC. The appellant claimed that he joined the Chinese Alliance for Democracy (‘the CAD’) in 1994, that his brother was an important political dissident in the PRC, and that the Chinese National Security Bureau had requested the appellant to obtain information for it about his brother and his friends. The appellant claimed that he had engaged in pro-democracy activities since arriving in Australia and that it was only since his arrival that he has overtly expressed his political views.

DECISION OF TRIBUNAL

5                     The appellant attended an oral hearing before the Tribunal on 20 July 2004. Evidence of a witness called by the appellant was not completed at the Tribunal by reason of time constraints. Rather than adjourning the hearing the Tribunal gave the witness the opportunity to lodge further evidence in the form of a written statement. The witness subsequently provided such statement to the Tribunal within the time specified.

6                     The Tribunal considered the issues raised by the appellant. It was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention and upheld the Minister’s decision.

FEDERAL MAGISTRATES DECISION

7                     On 3 November 2004 the appellant lodged an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court. A Further Amended Application dated 14 November 2005 raised seven grounds of review summarised as follows:

1.         The Tribunal erred in not considering the claims of the appellant to fear harm as a result of imputed political opinion arising from the political activities and opinions of the appellant’s brother;

2.         The Tribunal erred in its reliance on findings of the MRT dated 19 December 2003 at a time when such decision was under review and which has subsequently been set aside;

3.         The Tribunal erred in that it failed to provide the appellant with an adequate opportunity to present all of the relevant evidence and acted contrary to the rules of natural justice;

4.         The Tribunal erred in that it failed to inform the appellant that it had questioned the impartiality of a witness and the appellant was precluded from calling other impartial witnesses to prove his involvement in political activities in Australia;

5.         The Tribunal erred in finding that it was highly unlikely that the wife of the appellant did not tell him anything about her interview on 7 May 2003 and that he only found out in June 2003 that such interview had taken place;

6.         The Tribunal erred in applying s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’) in that it considered that the appellant could have applied for a Preferential Relative (Migrant) visa rather than a protection visa; and

7.         The Tribunal erred in that it failed to provide the appellant a proper opportunity to present his case to the Tribunal and the Tribunal thereby failed to act in accordance with substantial justice and merits of the case.

8                     Lloyd-Jones FM was satisfied that the Tribunal had expressly dealt with the claim of imputed political opinion as set out in the first ground of the Amended Application and that it was open to the Tribunal to reject such claim.

9                     Lloyd-Jones FM found that the Tribunal had satisfied its obligations pursuant to s 424A of the Act in relation to its consideration of the MRT decision by inviting the appellant to comment on the findings of the MRT. Although the appellant alleged that the Tribunal had acted in breach of s 420 of the Act, his Honour found that there were no particulars advanced to support such contention and that it could not be sustained.

10                  In relation to the third ground Lloyd-Jones FM acknowledged that the interpreter service was withdrawn which did not allow the completion of evidence of the appellant’s last witness. However it was found that the Tribunal did make alternate arrangements for the witness to provide information in the form of written evidence. His Honour noted that the witness accepted the invitation and provided addtional written information within the time specified by the Tribunal. There was nothing in the evidence to suggest that the appellant’s witness was prevented from giving evidence and his Honour considered that this ground of review could not be sustained.

11                  The fourth ground of appeal contended that the Tribunal breached its obligation to hear and determine the application and had breached s 424A of the Act. The appellant relied upon the transcript of the Tribunal hearing, noting in particular that the Tribunal questioned a witness relating to his impartiality. The appellant claimed that the issue of impartiality was not translated by the interpreter. His Honour found that there was no evidence to support such claim. His Honour referred to Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 in finding that the Tribunal’s view of the impartiality of a witness is part of the Tribunal’s reasoning process and does not constitute information within the meaning of s 424A(1) of the Act. His Honour found that there was no obligation to provide the appellant with particulars of its opinion of the impartiality of a witness and dismissed this ground of appeal.

12                  The fifth ground of review arises out of an interview which was held between Australian officials in Beijing and the appellant’s wife. The appellant had claimed that he was not married when he obtained his Preferential Relative (Migrant) visa. However, such claim was shown to be false during the subsequent interview with his wife. The Tribunal drew the inference that the details of such interview would have been conveyed to the appellant by the wife. The appellant challenged the drawing of such inference.

13                  Lloyd-Jones FM accepted that the Tribunal could draw the inference contained in the fifth ground of review, and that such inference was reasonably open to the Tribunal on the material before it. There was no need for direct evidence of specific communication before such an inference could have been drawn.

14                  As to the sixth ground of appeal Lloyd-Jones FM considered that the Tribunal applied the correct interpretation of s 91R(3) of the Act. Accordingly his Honour found no breach of the section as claimed.

15                  The seventh ground was rejected for the reason that it constituted a repetition of ground three. His Honour was satisfied that the Act had been complied with in relation to the evidence of the appellant’s brother and although it may have been preferable to obtain the evidence orally at hearing there was no requirement that the evidence be obtained in this manner. The Tribunal was entitled to take evidence in the form of written submissions.

16                  The decision of the Tribunal was found to be without error and Lloyd-Jones FM accordingly dismissed the application for judicial review.

APPEAL TO THIS COURT

17                   By Amended Notice of Appeal the appellant appeals from the whole of the decision of Lloyd-Jones FM on three grounds. Firstly the appellant claims that his Honour erred in failing to hold that the Tribunal erred in failing to provide the appellant with an adequate opportunity to present all of the relevant evidence that he had available and thereby acted contrary to the rules of natural justice. Secondly the appellant claims that Lloyd-Jones FM erred in failing to hold that the Tribunal had erred by incorrectly construing s 91R(3) of the Act. Thirdly, the appellant claims that Lloyd-Jones FM erred in failing to find that the finding of the Tribunal that ‘it is highly unlikely that the Applicant’s wife did not tell him anything about her interview on 07 May 2004 [sic] and he only found out in June 2003’ was not open to it on the evidence and was merely speculation rather than permissible inference.

Denial of Natural Justice

18                  The appellant claims that the Tribunal failed to adjourn the hearing and that the time allowed for the lodgement of further written evidence was inadequate. The appellant also claimed that he would have called additional witnesses had he been informed that the Tribunal did not regard the witnesses called by the appellant as impartial.

19                  The transcript records the fact that the interpreter was required to leave the hearing early on that day. The Tribunal member stated:

Q. I think you need the interpreter. Let’s try and see if I can finish in 15 minutes. If I can’t, I’m going to have to adjourn our evidence to a later date because the interpreter must go by 3 o’clock.

20                  Questioning thereafter continued during which the witness (‘Mike’) answered numerous questions. Thereafter the following exchange occurred:

Q. What do you want to tell the tribunal today?

A.     Let me think.

Q. What I’m happy for you to- -

A. Maybe you can leave, I talk- -

Q. I don’t want you to struggle to talk because that’s not fair to you, and I don’t want you to say something that you’re not comfortable in saying. I’m happy for you to write a statement and send it to me.

A. Maybe better way.

Q. Yes, but I can’t give you too much time, that’s all. I’m happy to give you till the end of the week to write something and I will decide if I need to ask you any further questions.

21                  It is acknowledged by the Minister that after the words ‘let me think’ the interpreter stated in Mandarin ‘Hurry up’ but that these words were not transcribed.

22                  Later the Tribunal member, having obtained a history of Mike’s involvement in the CAD continued:

Q. In Canada.

A.     Yeah. This book, brochure, introduce roughly for the CAD, but I got some – yes, want to say something about the hearing, but maybe I had better writing down.

Q. Please do. Unless you can say it in two minutes in the presence of the interpreter, but I really would like- -

A. That’s why I think, very hurry, you know. Perhaps I cannot correct express what I want to - -

Q. No that’s not fair. That’s not right, and I don’t want you to say things in a rushed manner either, because it may not be right for you to say that. But I’m happy to receive a statement from you.

A. Thank you for the chance.

Q. By the end of the week, please, if I could have it by Friday.

A. What about next week, because I got schedule. I will leave for . . (not transcribable) . . in the evening and come back Sunday, but I can . . (not transcribable) . .

Q. It doesn’t have to be a lengthy statement. I just need to know what you really want to say.

A. All right, okay. Understand, fax it to you.

Q. By Monday afternoon, please.

A. Yeah.

23                  As Lloyd-Jones FM observed, it was unfortunate that the hearing could not conclude that day. Nevertheless, consistent with the obligation of the Tribunal to provide a quick decision, asking the witness to present his further evidence in a written statement was a course that was open to the Tribunal.  The provision of the written statement by Mike on 26 July 2004 provided ample opportunity for him to complete the evidence he wished to present.

24                  The Tribunal is not required to conduct the proceedings as if they were a Court hearing: see SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 229 ALR 423 at 425 per Gleeson CJ, delivering the decision of the High Court of Australia said:

The procedure of review is inquisitorial, and does not involve an adversarial trial, at which evidence is adduced and tested, and issues are debated. There are no parties. The tribunal investigates an applicant’s claims in a process of administrative merits review of the delegate’s decision.

For similar observations see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 576 [187]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [52].

25                  In the present circumstances, the Tribunal was entitled to gather evidence in the manner it considered appropriate. The Tribunal had complied with its obligations under s 425 of the Act to provide the appellant with an opportunity to give evidence and make submissions at a hearing and there was no obligation on the Tribunal to take evidence orally from a witness. By directing that the balance of the evidence from Mike be provided by a written statement, the Tribunal complied with its obligation to give the appellant the opportunity to present his case: see s 429A(c) of the Act. Mike did not complain that there was insufficient time to provide the statement. Further the transcript records that Mike agreed to provide the statement during the following week.

26                  The procedure suggested by the Tribunal did not prevent further witnesses from giving evidence. The only witnesses the appellant had indicated that he proposed to call on the Response to Hearing Invitation form were those that were called by the appellant. The evidence of the appellant and of another witness had been heard. There was no entitlement for the appellant to call further witnesses if he formed the view that the witnesses already called were not to be believed.

27                  Mike swore an affidavit on 10 November 2005 which was before Lloyd-Jones FM. It claimed that he said to the interpreter in Mandarin ‘I wonder if what I am saying here is effective or not, otherwise I will provide another witness to you’. He claimed that the interpreter did not interpret the last words of his alleged statement. The transcript of the Tribunal hearing does not reveal any such words. The following exchange is recorded:

Q. Yes. What do you want to ask me?

A. Okay. So I want to first, do you give the – do you actually give – endorse my witness, the evidence today, because I’m his brother. Do you endorse?

Q. I don’t understand what you’re asking me, sorry.

A.  So like, Qin Jin is a close friend of mine and he gives evidence about my brother. You were thinking whether it’s - -

Q. So you have discussed the evidence that the witness gave this morning with him, have you?

A.  No, no.

28                  The assessment of the credibility of a witness is a matter entirely for the determination of the Tribunal: see Tin [2000] FCA 1109 and does not form information for the purposes of s 424A(1) of the Act. The provisions of the Act are an exhaustive statement of the principles of natural justice and there is no scope for the application of any residue common law principles: see s 422B of the Act.

29                  There is no error as claimed, and Lloyd-Jones FM was correct in his conclusion that there was no denial of natural justice.

Construction of s 91R(3) of the Act

30                  The Tribunal accepted that the appellant engaged in some political activities in Australia but found that any such activities were engaged in for the purpose of enhancing his refugee claim. The Tribunal would pay no regard to such activities because they were activities which were excluded pursuant to s 91R(3) of the Act. The appellant submits that s 91R(3) does not exclude the possibility that an applicant may act with more than one purpose, so that if he or she engages in conduct to which s 91R(3) applies, there may be another purpose which has resulted in the conduct. It is alleged that the Tribunal failed to exclude such possibility of more than one purpose in its determination.

31                  Section 91R(3) of the Act relevantly provides that in determining whether the person has a well founded fear of being persecuted for one of the reasons mentioned in Article 1A(2) of the Refugees Convention, the Court may:

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.

32                  The Tribunal found that the appellant engaged in the conduct for the purpose of strengthening his claim to be a refugee. As such, s 91R(3) of the Act applies and the Tribunal was entitled, having made such findings of fact, to determine that the conduct was not bona fide. The factual findings of the Tribunal thus operate to exclude the hypothesis proposed by the appellant. Further, s 91R(3) of the Act creates a reversal of onus of proof, which the appellant did not discharge: see NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 at [26] which was approved in SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [39].

33                  The process by which the Tribunal reached its conclusions was the same as that considered by Mansfield J in SAAS v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 182 at [52]-[57] which was later upheld on appeal: see SAAS of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 340 at [15]. The Court can find no error in the findings of Lloyd- Jones FM.

Claim of no evidence to support finding / finding was speculation rather than permissible inference

34                  The Tribunal found that the appellant became aware in June 2003 of the possibility of the cancellation of his visa having received the letter of 2 June 2003 from the Department. The Tribunal found, that upon close analysis of the appellant’s activities, the activities in which he was engaged prior to June 2003 ‘were essentially those activities in which his brother had been involved’. It continued:

The applicant has in a calculating and careful manner associated himself with activities concerning his brother in order to support his own claim of involvement in political activities. On the basis of the evidence as a whole, the Tribunal cannot accept that the applicant on 4 June 2002 took part in a pro-democracy activity in Sydney, nor can the Tribunal accept that in mid August 2002 he assisted his brother and friends to arrange a visit to Australia of Mr W J Kingsheng and that in early 2003, he assisted his brother to organise the “Yellow Ribbon” activity.

35                  The Tribunal did not accept that the appellant did not know of the interview on 7 May 2003 between Australian Embassy officials in Beijing and the appellant’s wife. Lloyd-Jones FM noted the evidence upon which the Tribunal could reach such conclusion, which included the sponsorship of the wife and child by the appellant. Contrary to the claim of the appellant, there was sufficient factual circumstances to warrant the inference by the Tribunal in making such finding: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]-[35]; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at 232-233, 236, 240 and 259; VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]-[35]. Further, the Court accepts the submissions of the Minister that such finding does not bear on the Tribunal’s conclusion that the appellant’s political activities in Australia were not bona fide.

36                  Lloyd-Jones FM did not err in his findings and it follows that this appeal must be dismissed.

37                  The Minister has sought an order for costs in the sum of $5000. As this is within a reasonable range for costs in the circumstances the Court will make the order sought.

Associate:

Dated:         18 October 2007