FEDERAL COURT OF AUSTRALIA

SZJYA v Minister for Immigration and Citizenship (No 2)

[2008] FCA 911

MIGRATION LAW – reviewof decisions – Refugee Review Tribunal – conduct of review – hearings – whether the tribunal accorded applicant natural justice – whether the tribunal had adequately identified to applicant for review “the issues arising in relation to the decision under review” as required by s 425(1)

Held:  Appeal allowed 

Migration Act 1958 (Cth), ss 91R(3), 424A(1), 425(1), 430(1)

Evidence Act 1995 (Cth), s 140

Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1 referred to

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 8 cited

Briginshaw v Briginshaw (1938) 60 CLR 336 referred to

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 46 cited

Kioa v West (1985) 159 CLR 550 cited

Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

NAOA v Minister for Immigration [2004] FCAFC 241 considered

NBKT v Minister for Immigration (2006) 156 FCR 419 distinguished

Rejfek v McElroy (1965) 112 CLR 517 applied

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

SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 cited

SZILQ v Minister for Immigration (2007) 163 FCR 304 referred to

SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870 cited

SZJYA v Minister for Immigration [2007] FMCA 613 reversed

SZKTI v Minister [2008] FCAFC 83 cited

SZJYA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 703 OF 2007

RARES J

16 JUNE 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The first respondent pay the appellant’s costs.

3.                  Orders 1 and 2 made by the Federal Magistrates Court on 4 April 2007 be set aside, and in lieu thereof, the following orders be made:

(a)        order, in the nature of an order absolute in the first instance, for a writ of certorari to quash the decision of the second respondent, made on 4 August 2006, to affirm the decision of the first respondent not to grant the applicant a protection visa;

(b)        order, in the nature of a writ of mandamus, directing the second respondent to hear and determine the application for review according to law; and

(c)        the first respondent pay the applicant’s costs, if any.

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

REASONS FOR JUDGMENT

1                     The appellant is citizen of the People’s Republic of China.  She arrived in Australia on 2 April 2006.  In mid-May 2006 she applied for a protection visa with the assistance of a migration agent.  A delegate of the Minister refused her application on 4 August 2006.  She applied to the Refugee Review Tribunal to review the delegate’s decision.  It affirmed the decision of the delegate.  The Federal Magistrates Court refused her claim for constitutional writ relief on the basis that it was not satisfied she had an arguable case.  I granted the appellant leave to appeal from that decision (SZJYA v Minister for Immigration and Citizenship [2007] FCA 1168). Subsequently, the matter was fully argued on the hearing of the appeal.

THE APPELLANT’S CLAIMS FOR PROTECTION

2                     The appellant made a statutory declaration detailing her claims.  She submitted it with her visa application.  She was 22 years old.  She claimed that she had faced persecution by the Chinese authorities because she was a Christian, and a member of the Local Church which was regarded as an anti-government, illegal Christian church.  Two years before coming here, she had graduated from a senior high school in Fujian Province.  Following her graduation, her elder brother invited her to assist him in his food shop on the outskirts of Guiyang, the capital of Guizou Province, a considerable distance from her home.  She went to Guiyang in August 2002.

3                     Her brother’s shop was close to a village in which most of the local people were members of a particular ethnic group.  The appellant claimed that most of the local villagers relied on growing tobacco and supplying it to a large State owned tobacco factory in Guiyang.  She claimed to have been concerned about the numbers of the local ethnic group who smoked, including children who were starting to do so at about age 10.  She claimed to have been concerned that the local authorities did not have any policies or take any steps to deal with this serious social problem, particularly in relation to young children smoking.

4                     The appellant claimed to have returned home in late 2004 where she met a food supplier.  He introduced her to the Local Church.  She claimed that she attended religious gatherings and bible study sessions at a number of locations and was told that only the Lord God was able to save unfortunate people such as those in the village where her brother’s shop was located.  The Local Church is also known as the ‘Shouters’ because, she said, they normally shouted loudly while they prayed.  The appellant claimed that prior to leaving Fujian she had been baptised and became a formal member of the Local Church.  She claimed that she assumed the duty to assist in spreading the gospel to the local people in Guiyang, particularly to those in the ethnic village.

5                     In early March 2005 she claimed to have returned to her brother’s shop with the supplier.  She and the supplier became friendly with a local Han Chinese man who was a skilled tobacco grower respected by the members of the ethnic group.  The appellant claimed that the supplier took advantage of the grower’s special influence with the local ethnic group to spread the gospel and study of the bible.  She claimed then to have begun to spend most of her spare time engaged in religious pursuits assisting the supplier and developing her own bible study group. 

6                     She claimed that in about August 2005 the supplier organised a worship evening at the grower’s home and that then a number of local officials and police arrived saying that they were suspected of illegal anti-government activities.  Both men were taken to the local police station.  The appellant claimed that the next day three policemen came to her brother’s shop while she was working and questioned her about the previous evening’s gathering.  She claimed to have told the police that it was a special gathering to assist the local people to give up their smoking habits.  She claimed that the police warned her not to get involved in the illegal anti-government gatherings.  Both men were detained, she claimed, for about a week.

7                     The appellant claimed that after this the religious practices were hampered because police continued to come to the village to investigate them.  There were many Karst caves around Guiyang.  The appellant claimed that her group found such a cave not far from the village and, from October 2005 to about January 2006, the supplier organised religious activities almost every weekend in one of them, while she organised the women of the group to study the bible in the cave at the same time.

8                     After the appellant’s grandmother passed away at the beginning of January 2006, she and her brother returned to their home town in Fujian for the funeral.  She claimed that she planned to return to Guiyang in February 2006 but was told, by telephone, that on 22 January 2006 both the supplier and the grower had been arrested by police while they were holding a secret church service in the Karst cave.  She claimed that the police had gone to her brother’s shop with a warrant for her arrest.  She claimed that since then the police had been many times at her brother’s shop and her home in Fujian to arrest her but could not find where she was hiding.  She claimed that her brother had been arrested but was released after her family had paid a lot of money.  She obtained a false passport which she used to travel to Australia.

THE DELEGATE’S DECISION

9                     The delegate summarised the appellant’s claims.  The delegate accepted that the Shouters were regarded as an illegal sect in China and that there were limitations on religious freedom there.  The delegate accepted that clergy, lay leaders or activists associated with underground churches may be subject to persecution by the Chinese government but said:

‘I do not, however, accept that the [appellant] falls within this category and have a number of concerns about the credibility of her account, as detailed below.’ 

10                  The delegate then made the following findings:

1.         The appellant had ‘… provided no evidence that she is in fact a member of the Local ‘Shouter’ Church or that she was baptised in early 2005’  (emphasis added;  the reference to ‘no evidence’ must be understood as a reference to no corroborating evidence, the appellant having made a detailed statutory declaration setting out her claims).  The appellant had not provided any ‘detailed information about the Church or any details of her beliefs’.  She had not provided evidence about her residence in Guiyang, the warrant for her arrest or the arrest, detention or release of her brother.  The delegate said that although the appellant claimed to have fled China to avoid persecution and to seek protection in Australia, the delegate considered it ‘reasonable to expect her to have brought some evidence of her Christianity and other claims with her’. 

2.         The available country information suggested that the authorities were interested in the leaders of underground churches ‘rather than mere members’.  The appellant’s claimed membership of the Local Church would not have brought her to the attention of the authorities who would have been more interested in the church pastors.

3.         The appellant’s claims that she was the subject of an arrest warrant and about the detention of her brother were ‘…not consistent with her low key role within the church’.

4.         The appellant’s account of her introduction to the Local Church and the actions of the supplier lacked credibility.  The delegate said that it was not credible on the basis of what the appellant had said that the supplier would have left his business in Fuijan to proselytise the people in the village or in Guizou Province.  Further, it was implausible that the appellant would have been allowed to continue her involvement with the Local Church in Guiyang given her brother’s strong disapproval of her involvement, particularly after her being questioned in August 2005 by the police.

5.         An internet search (by the delegate) had not been able to find records of arrests of Christians in Guiyang in August 2005. 

6.         For the above reasons, and ‘in the absence of any evidence to support’ her claims, the delegate was ‘unable to accept the credibility of [the appellant’s] account’.

THE TRIBUNAL’S DECISION

11                       The appellant applied to the tribunal to review the delegate’s decision.  She had the assistance of her migration agent.  The tribunal wrote to her advising her that it had considered the material before it but was unable to make a decision in her favour based on that information alone.  The appellant attended a hearing and gave evidence to the tribunal.  No transcript of the hearing before the tribunal was in evidence either before the trial judge or on appeal.  She told the tribunal that her parents were members of the Local Church but that she was not involved with it until after she had gone to Guiyang.  She claimed that she had been educated at boarding school and did not know how her parents had practised their religion.

12                       She said that there were three churches in her village, one approved by the authorities, one a Catholic Church and another Local Church, which was not approved.  She told the tribunal that she had been to the Local Church one Sunday when she was young with her mother and that she remembered singing, a bowl and a cup on the table on that occasion.  Later, when she became a member of the Local Church she knew that that had been ‘the pancake gathering’ held on Sunday to remember the life of Jesus.  She told the tribunal that the pancake represented the body and the wine the blood of Jesus, and if one ate the pancake and drank the wine one would be rid of sin.

13                       The tribunal recorded in its reasons, over four closely typed pages, its account of the course of the evidence given by the appellant to the tribunal, including questions that it had raised with her.  The tribunal recorded her account how she came to be involved in the church and baptised.  The tribunal’s account of its questioning of the appellant concerning religious matters revealed that she had a reasonable understanding of, at least, the fundamentals of the Christian religion.  It later found that she ‘… was able to provide details of Christian belief and of Local Church beliefs and practices …’  The tribunal recorded that the appellant had said, at the conclusion of its account of her evidence at the hearing, that she had been attending a Local Church in Blacktown (Sydney) and that ‘Tony’ was the leader.  She said that she found that church because she had met a Chinese man on a train who told her about its meetings.  The tribunal said that after the hearing the appellant had provided it with a letter from the Local Church in Sydney which confirmed her attendance at church meetings for the last six months until a month before September when she moved to Brisbane.  The tribunal confirmed that evidence directly by contacting the Local Church.

14                       On 19 October 2006 the tribunal sent the appellant a letter pursuant to s 424A(1) of the Migration Act 1958 (Cth).  The letter asserted that there was a number of inconsistencies between the appellant’s statements at the hearing and country information.  It invited her to comment on four specific pieces of country information, three of which were to do with the Local Church and the fourth to do with the people living in the ethnic village (see further [42]).  The letter concluded by noting that the inconsistencies identified by the tribunal cast doubt on her claim that she would be persecuted were she to return to China and might lead to a finding that the claim did not meet the relevant criteria for a grant of a protection visa.  The letter then said:

‘It also indicates that you may not be credible and that evidence has been created and provided to the Department and Tribunal to obtain a protection visa.  This may lead the Tribunal to find that you will not be persecuted if you return to China and that you do not meet the relevant criteria for the grant of a protection visa.’

The appellant responded to that letter in early November 2006 by answering each of the four particular items which the tribunal had raised.

15                       The tribunal found a number of aspects of the appellant’s oral evidence problematic, namely what it said was her particular lack of knowledge of the ethnic group with whom she claimed to be involved, her motivation for joining and continuing to participate in the Local Church, the supplier’s motivation for wanting her to join the church and the events between August 2005 and January 2006 involving the police interest.  It said that ‘[t]hese difficulties lead the Tribunal to find that the [appellant] is not credible and not being truthful’ (my emphasis).  The tribunal then set out a series of findings, relevantly:

1.         The appellant failed to provide detail and was vague and evasive when questioned about the ethnic group, despite her association over a period of time with it.  The tribunal rejected her explanation at the hearing and in response to s 424A letter on this topic.

2.         The appellant failed to provide adequate detail when recounting her meetings with the supplier.

3.         Critically, the tribunal said that it did:

‘… not accept that the [appellant] was involved with the Local Church and the [ethnic] people, near Guiyang.  The Tribunal finds that the [appellant’s] motivation for becoming a member and her continued involvement in the Local Church and [ethnic] people as not credible and inconsistent with country information.’

The tribunal relied on country information to find that the interests of the Shouters or Local Church lay strictly in bible study and eschewed involvement with broad social, political or economic matters.  It did not accept the appellant’s response to the s 424A letter in which she said that she did not know that the Local Church normally eschewed such involvement in social matters but that she was looking for an effective way or method to save the unfortunate people, in particular the children, from the perils of smoking.  It found that if the supplier were a member of the Local Church, he would not have advised her to become a member so as to stop the children smoking, or that that was her mission, since that was not a belief of that church, rather it was something which the church avoided.

4.         The appellant’s explanation of the events from August 2005 to January 2006 was implausible.

16                       The tribunal then said that whilst the appellant was able to provide details of Christian belief and of Local Church beliefs and practices, her reasoning for becoming a member and leading a group, namely to prevent the smoking, was not credible.  And, it continued:

‘In addition she was unable to provide details of the Local Church which the Tribunal would expect would be known by someone who had genuinely been a member since March 2005, including approximately six months practice in Australia.’  (emphasis added)

17                       The tribunal then said that, collectively, the above matters led it to find that the appellant was ‘not a credible witness’ and that:

 ‘… she did not become a member of the Local Church in China as she claims.  On the basis of the letter from the Local Church in Sydney the Tribunal accepts that the [appellant] has attended a church here but as it has not found her credible it is not satisfied that she engaged in this conduct other than for the sole purpose of strengthening her refugee claim.  Accordingly, it has disregarded this conduct in assessing her case as required by s. 91R(3).

The Tribunal does not accept that the [appellant] was a member of the Local Church in China, it does not accept that she went to Guiyang as a member of the Local Church with [the supplier], and began groups for the local [ethnic] group and it does not accept that she is currently a genuine practitioner.  The Tribunal therefore does not accept that the Chinese authorities are searching for her as a member of the Local Church in China.’  (emphasis added)

THE FEDERAL MAGISTRATES COURT’S DECISION

18                       The trial judge identified that one ground of the amended application before him was that the appellant was a genuine member of the Local Church.  He said that this was no more than an argument going to the merits of the tribunal’s assessment.  He said it was ‘not illogical, capricious or perverse’ for the tribunal to accept that the appellant had acquired, in Australia, knowledge of the Local Church and attended its meetings, while not accepting her claims to have engaged in Local Church activities in China (SZJYA v Minister for Immigration [2007] FMCA 613 at [18]).

19                       Next his Honour identified another ground raised by the appellant before him as, in substance, that she had been misled by the tribunal into believing that her claims had already been accepted and well-understood.  He pointed out that there was no transcript of the hearing before the tribunal or affidavit evidence to show that that had happened.  His Honour found that there was nothing before him, including the tribunal’s description of the hearing, which gave that ground any substance, and pointed to the fact that the s 424A letter drew attention to the question of the appellant’s credibility as a whole (SZJYA [2007] FMCA 613 at [21]).

20                       His Honour concluded that the principles discussed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 did not assist the appellant because she was ‘clearly put on notice by the delegate’s decision and the s 424A letter that the truth of her whole narrative was in issue’ (SZJYA [2007] FMCA 613 at [22]).  His Honour dismissed her argument that the tribunal had failed to comply with s 424A.

21                       Lastly, the trial judge referred to one ground that the appellant’s brother had been granted a protection visa.  He said there was no evidence that the tribunal was ever told of this for the purposes of considering the appellant’s case.  As I pointed out in the course of my reasons granting leave to appeal (SZYJA [2007] FCA 1168 at [15]) that may be a matter which the appellant could draw to the Minister’s attention under s 417 of the Act.

22                       His Honour summarily dismissed the application under FMCR 44.12(1)(a) on the basis that it did not raise an arguable case.

ISSUES ON APPEAL

23                       The appellant argued that:

·                his Honour erred in holding that it was not illogical, capricious or perverse for the tribunal to accept that in Australia the appellant had acquired knowledge of the Local Church and attended its meetings while concluding that she had not engaged in its activities in China as she claimed;

·                the tribunal failed to accord her procedural fairness in accordance with s 425 of the Act.  The appellant argued that the delegate’s decision had not identified or involved any finding that she had acquired knowledge of the Local Church and attended meetings only in Australia.  Indeed, it would have been very difficult for the delegate to have made such a finding since the application for a protection visa was made within six weeks of her arrival her and did not refer to any involvement she had with the Local Church in Australia.  That local involvement appears to have arisen at the end of the tribunal hearing (based on its recitation in its statement for decision and reasons of what happened then) and the tribunal’s investigation of the letter dated 8 October 2006 from the Local Church;

·                the delegate had found that she had had a low key role within the Local Church in China and that the tribunal had not referred to this as an issue arising in relation to the decision under review for the purposes of s 425(1) of the Act, as explained in SZBEL 228 CLR at 162-164 [33]-[40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.  In effect, the appellant argued that she had not been informed that an issue arising on the review was that she had fabricated her association with the Local Church by attending meetings in Australia and gaining her knowledge of Christian beliefs and practices solely in the short period in which she was in this country, in particular the period between lodging her application and its refusal by the delegate.  In this regard, she relied on the formulation that I had considered to be arguable when granting leave to appeal (SZJYA [2007] FCA 1168 at [12].

24                       In SZBEL 228 CLR at 164 [38] the Court said that it was important to identify the issues arising in relation to the delegate’s decision which was under review.  Those issues determine whether rejection by the tribunal of critical aspects of an applicant’s account of events was obviously open on the known material.

25                       The Minister argued that it followed from the Court’s reasons in SZBEL 228 CLR at 164-166 [39]-[49] that the delegate had rejected the appellant’s account on the basis that there was no evidence to support her claims.  Thus, he argued that the delegate could not accept her credibility and this finding put her on notice that the whole of her claim was in issue on the review.  The Minister particularly relied upon what the Court had said in SZBEL 228 CLR at 165 [43].  Their Honours held that nothing in the delegate’s reasons for decision in that case indicated that two identified aspects of SZBEL’s account were in issue.  Nor had the tribunal in that case identified those aspects of his account as important issues.  In that case the delegate had not based his decision on those two matters.  Prior to giving its decision, the tribunal had not challenged what SZBEL had said on the two matters, so that he was not alerted to them being live issues in the tribunal’s decision against him.

26                       The Minister argued that, based on the delegate’s decision, the appellant here was on notice that her whole credibility and account were in issue.

CONSIDERATION

27                       Here, the tribunal dealt with an issue which was not before the delegate concerning the genuineness of the appellant’s beliefs and current practising.  It found that it did not accept that ‘she is currently a genuine practitioner’ and referred to s 91R(3) of the Act.

28                       In SZBEL 228 CLR at 165 [47] the Court noted that there may well be many cases, where either the delegate’s decision or the tribunal’s statements or questions during a hearing sufficiently indicate to an applicant for review that everything he or she says in support of the application is in issue.  They said that that indication could be given in many ways.  If there were specific aspects of an applicant for review’s account that the tribunal considered may be important to the decision and may be open to doubt, it had at least to ask the applicant to expand upon those aspects of the account and to explain why it should be accepted.

29                       The Minister argued that because there was no transcript or affidavit evidence of what happened in the hearing before the tribunal, it was impossible to find on the material before me that the tribunal had not asked the appellant to expand upon the aspects of her account concerning her belief and practice of Christianity both in China and here, and to explain why it should be accepted.  He argued that the fact that, after the hearing, the appellant had seen fit to provide the tribunal with the letter from the Local Church in Sydney showed that she was on notice that this was an issue.  And, the Minister argued that whatever might be contained in the tribunal’s statement of decision and reasons, it was not obliged to set out the full course of the hearing, but only to perform the duty imposed by s 430(1).  Accordingly, he argued that it ought not be found that the tribunal’s recital of so much of the hearing as appears in its statement of reasons and decision was full and complete.

30                       The Minister submitted that where, as here, a party argues that something did not happen, namely that the appellant was not put on notice that the genuineness of her belief in Christianity was in issue, the only way that lack of notice could be proved was by tendering what actually happened at the hearing through either the transcript, a tape recording or an affidavit.  He said that, absent such evidence, it would be mere speculation to conclude that the fact asserted by the appellant here had been proved.

31                       After I reserved judgment, the Minister referred to what Beaumont, Merkel and Hely JJ said in NAOA v Minister for Immigration [2004] FCAFC 241 at [21].  They observed that it had not been open for the trial judge, on the evidence of the tribunal’s decision record alone, to have made a finding that a matter had not been raised with the applicant at the hearing before the tribunal.  They noted there that there was no transcript or affidavit before the trial judge as to what had occurred at the hearing.

32                       Three months after NAOA [2004] FCAFC 241 was decided, the High Court decided Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1 where at 10-15 [28]-[41] McHugh, Gummow, Callinan and Heydon JJ analysed the course of a hearing before the tribunal based solely on the decision record.  They noted (NAFF 221 CLR at 10 [28] and see too at 5 [9]) that without access either to the tape recording or transcript of the hearing before the tribunal it was not easy for the Court to appreciate the detail of everything that happened at the hearing.  I consider that the Full Court in NAOA [2004] FCAFC 241 at [21] simply made its comments based on the particular facts of that case.  As is clear from NAFF 221 CLR 1, the tribunal’s decision record alone is evidence of what happened at the hearing.

33                       Ordinarily, the best way of proving what occurred at the hearing before the tribunal would be to tender the transcript or a tape of the hearing.  A less fulsome method may be to read an affidavit or lead oral evidence giving an account of what occurred.  Notwithstanding that, I am of opinion that what the tribunal has set out in its statement of decisions and reasons is some evidence of what occurred at the hearing;  indeed it was the only evidence on that question before his Honour and on appeal.  Often, in both civil and criminal proceedings, parties will choose to tender certain evidence when the Court might think there was better evidence available to establish a fact in issue.  Nonetheless, the Court can infer the existence of a fact from evidence so long as the evidence satisfies it on the balance of probabilities of the existence of the fact:  s 140 of the Evidence Act 1995 (Cth).

34                       The Minister’s argument conflated the weight which may be given to evidence capable of proving a fact with the ultimate fact sought to be proved by that evidence.  As Dixon J pointed out in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363, the nature of the issue necessarily affects the process by which the tribunal of fact can attain a reasonable satisfaction of the occurrence of an event.  He said reasonable satisfaction was not a state of mind that was attained or established independently of the nature and consequence of the fact or facts to be proved:  Briginshaw 60 CLR at 362.  This reflects s 140 of the Evidence Act:  see also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at 479-482 [29]-[38] per Weinberg and Bennett JJ and myself.  Thus, in Rejfek v McElroy (1965) 112 CLR 517 at 521-522 Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ said that no matter how grave the fact which was to be found in a civil case, the mind had only to be reasonably satisfied and had not, with respect to any matter in issue in such a proceeding, to attain that degree of certainty which is indispensable to the support of a conviction on a criminal charge.

35                       Of course, it would have been preferable for the then unrepresented Mandarin speaking 22 year old appellant to have proved her case before his Honour by tendering the transcript or by swearing an affidavit as to what transpired at the hearing before the tribunal.  But his Honour did identify what occurred before the tribunal as an argument that was in issue below.  He formed the view that the absence of this evidence demonstrated that the appellant did not have an arguable case.

36                       The appellant argued that the tribunal’s reasons do not suggest that she had been invited to give evidence or present arguments as to whether she had engaged in attending the Local Church in Australia either for the purposes of bolstering her claim for a protection visa or as going to her credibility generally.  She relied on what Buchanan J had held in SZILQ v Minister for Immigration (2007) 163 FCR 304 at 315-316 [32]-[33]

37                       The Minister argued that the tribunal’s recitation of what had occurred at the hearing in the course of questioning the appellant put her on notice that her account generally was implausible.  He argued that the inference from this material was that she was aware that her membership of the Local Church here was in issue.  The Minister also argued that SZILQ 163 FCR at 315 [31] supported his submission that the tribunal did not have an obligation to put to the appellant that it would make a finding against her under s 91R(3), because that section placed the onus on the appellant of satisfying the tribunal that conduct engaged in in Australia was not done for the purposes of supporting the claim to a protection visa.

38                       As the Court pointed out in SZBEL 228 CLR at 160 [25], what is required by procedural fairness is a fair hearing, not a fair outcome.  The trial judge said that the appellant had clearly been put on notice by the delegate’s decision in the s 424A letter that the truth of her whole narrative was in issue.  I do not agree that that is so or that it was sufficient.  First, in SZILQ 163 FCR at 316 [33] Buchanan J observed, correctly, that it is an essential premise of s 91R(3) that an applicant for review have a proper opportunity to satisfy the tribunal (or the Minister or a delegate) that the conduct in Australia which is said to be relevant was not engaged in just for the purpose of strengthening his or her claim to be a refugee.

39                       As noted above, in its statement of decision and reasons the tribunal set out a summary of the evidence given by the appellant at the hearing.  At the very end of that account the tribunal recorded simply that she had told it that she had been attending a Local Church at Blacktown (a suburb of Sydney) and that ‘Tony’ was the leader.  Next, the tribunal recorded that after the hearing the appellant provided it with a letter from the Local Church in Sydney which confirmed her attendance there for the previous six months before she had moved to Brisbane one month earlier.  It said that this information was confirmed when the tribunal contracted the Local Church (cp SZKTI v Minister [2008] FCAFC 83).

40                       In the section of its decision headed “Findings and Reasons” the tribunal then made its adverse finding under s 91R(3).  It did so on the express basis that it did not find the appellant to be credible.  However, on its own account of its hearing and procedures, it never raised with her anything to suggest that the genuineness of her conduct here was an issue arising in relation to the delegate’s decision (see:  s 425(1)).  Nor on the face of the delegate’s decision could such an issue have arisen, since the delegate did not refer to any conduct of the appellant in Australia.

41                       The issues concerning the appellant’s conduct in Australia and her knowledge of the Local Church were not matters referred to by the delegate;  rather they were new issues raised by the tribunal.  And, the tribunal’s findings about the appellant’s conduct in Australia were integral to its findings that, at the time of its decision, first, she was not a genuine practitioner and secondly, that there was no real chance she would be persecuted for a convention reason if returned to China.

42                       Secondly, the s 424A letter did not deal with the genuineness of her belief in Christianity or the church.  Rather, the s 424A letter invited the appellant to comment on four identified matters, namely:

1.         Her claim that her motivation for being involved with the Local Church was to prevent the high level of smoking in the ethnic group particularly among children, when independent country information indicated that that church’s interest lay strictly in bible study and its members eschewed involvement with broad social, political or economic matters.

2.         Her claim that the Local Church did not mix with other churches because it was not registered with the government but that it accepted other churches, when that conflicted with independent country information that the Local Church believed that institutionalised Christianity, such as the Roman Catholic Church and others, were in a fallen state and that their institutions were evil.

3.         Her claim to have worked with the ethnic group closely from March 2005 to December 2005 when she was unable to provide sufficient detail as to matters concerning those people and independent country information indicated that they had distinctive clothing and housing and celebrated unique festivals.

4.         Her evidence to the tribunal that the Local Church was started by Li Thung Cheng in 1903 when he was born, although independent country information suggested that the Shouters were an outgrowth of an indigenous Chinese religious sect founded in 1922 and associated with the religious philosophy of Ni Tuosheng who was born in 1903.  The tribunal asserted that the independent country information indicated that Ni’s disciple, Li Changshou, or ‘Witness Li’, was primarily responsible for organising the Shouter splinter movement.

43                       Those matters did not raise any suggestion that the appellant was not a Christian at all or that she had created evidence to support her claim that she was a practising Christian.  And, there was nothing in those four matters which related to s 91R(3).  The letter raised an issue that her claim to be involved with the Local Church in China in the way in which she had sought to explain, did not accord with independent country information.  And the delegate had found that claim lacked credibility.  The s 424A letter did convey that the tribunal saw the potential of making an adverse decision because of the appellant’s lack of familiarity with, first, doctrinal differences between the Local Church and other churches and, secondly, the history of the Local Church.

44                       In SZBEL 228 CLR at 163 [36], the Court said that in the ordinary situation of an applicant attending a hearing before the tribunal following an invitation under s 425(1):

‘… unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.’

45                       Here, the appellant was found by the tribunal to be ‘… able to provide details of Christian belief and of Local Church beliefs and practices …’.  The tribunal said that her reasoning for becoming a member and leading a group to prevent smoking was not credible.  It added that, ‘… [i]n addition she was unable to provide details of the Local Church which the Tribunal would expect would be known by someone who had genuinely been a member since March 2005, including approximately six months practice in Australia’ (emphasis added).

46                       Next the tribunal referred to the appellant’s evidence and subsequent response to the s 424A letter.  It noted that she had said, both at the hearing and in the response to the s 424A letter, that the Local Church did not mix with the Chinese registered church.  In evidence she had told the tribunal, however, that the Local Church accepted other churches, whereas country information was to the contrary.  The tribunal considered this was an issue for it.

47                       Ultimately the tribunal referred to the collective impact all of the adverse findings it had made to conclude in the passage set out in [17] above that the appellant was not a credible witness and disregarded her conduct in Australia pursuant to s 91R(3) of the Act.

48                       In October 2006 the appellant was able to provide details of Christian belief to the tribunal, as it found.  But, the delegate had found on 4 August 2006 that she had not provided detail of her beliefs or evidence of her Christianity.  On her account, the appellant had begun practising as a Christian in the Local Church in March 2005.  She had attended the Local Church in Sydney until early September 2006 having arrived here on 2 April 2006.  Thus, on the findings of the tribunal she had at most 5 months of church attendance here prior to the hearing.

49                       By force of s 91R(3) of the Act, conduct in Australia engaged in by an applicant for a protection visa must be disregarded unless the person satisfies the decision-maker that he or she engaged in the conduct otherwise than for the purpose of the strengthening his or her claim to be a refugee.  Here, the conduct that the tribunal disregarded was the appellant’s attendance at the Local Church in Sydney.  The tribunal made no finding that the appellant had engaged in any conduct in Australia to obtain knowledge of the details of Christian belief and Local Church beliefs and practices, which it found she actually had.  Yet, it also found that she was unable to provide details, unspecified by the tribunal, of the Local Church which it expected a genuine practitioner who had been a member since March 2005 including approximately six months practice here.  The tribunal did not identify what constituted the details it ‘expected’ a ‘genuine practitioner’ in the appellant’s position to know.  Nor did it identify what a genuine practitioner might learn in approximately six months practice in Australia or how she fell short of that standard.  The tribunal did not refer to any matter of Local Church practice or doctrine in Australia, let alone any against which it made its adverse assessment that the appellant’s knowledge had not met its expectation.

50                       It is implicit in the reasoning of the tribunal that such knowledge of Christianity and the Local Church, as the appellant had, was obtained in Australia to strengthen her claim to be a refugee:  cf s 91R(3) of the Act.  That flows from its rejections of her claim to have been a member of the Local Church in China and, based on s 91R(3), the genuineness of her attendances at the Sydney Church.  Yet there is nothing in the tribunal’s statement of decision and reasons which indicates that it put the appellant on notice that she had not had that knowledge before arriving here.  Nor did it make such a finding expressly.  There may be other limitations on the tribunal’s use of s 91R(3) in relation to a person’s religious belief as suggested by Young J, with whom Gyles and Stone JJ agreed in NBKT v Minister for Immigration (2006) 156 FCR 419 at 442-443 [91]-[97], but these do not arise here.

51                       The tribunal said that it had applied s 91R(3) of the Act to disregard the appellant’s conduct in attending the Local Church here.  Yet it accepted that the appellant had been able to provide details of Christian belief and of Local Church beliefs and practices.  Those details were not criticised by the tribunal and appear to have been accurate, so far as they were sought.  The appellant did not appear to be making a claim based on her conduct in Australia.  Certainly, she did not do so in her application for a protection visa.  Nor did the delegate consider such a claim.  The tribunal did not recite such a claim, although it noted her evidence of her attendance at the Local Church in Blacktown.

52                       In a case like the present, it is important to bear in mind that the tribunal’s reasons are those of the administrative decision-maker.  Courts cannot be concerned with looseness in the language nor unhappy phrasing of such reasons, nor must they be analysed minutely and finely ‘… with an eye keenly attuned to the perception of error’:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, quoting from Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ.  Their Honours warned against turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.  Nonetheless, as Brennan J observed in Kioa v West (1985) 159 CLR 550 at 662:  ‘The distinction between method and merits is sometimes elusive.’

53                       The function of a court is to discern whether the tribunal has arrived at its decision on the merits by a procedure authorised by, and in conformity with, the enactment which conferred the power:  Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 95-96 [14]-[16];  SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [37]-[41] per myself.

54                       The tribunal was required, by s 430(1)(d) of the Act, to refer in its statement ‘… to the evidence or any other material on which the findings of fact were based’.  The tribunal gave a number of reasons stating that it found shortcomings and implausibilities in the appellant’s knowledge of some Local Church doctrines.  But, the delegate had not based his or her decision on this aspect or on the suggested Australian acquisition of knowledge by the appellant:  cf SZBEL 228 CLR at 165 [45].  I agree with Buchanan J who observed in SZILQ 163 FCR at 316 [33] that it is an essential premise of s 91R(3) that the applicant for review have a proper opportunity to satisfy the tribunal (or decision-maker) of the matters with which that section deals.

55                       I am of opinion that the tribunal did not put the appellant on notice that it would find her ‘… not a credible witness’ because, in effect, she had obtained whatever knowledge she had of Christianity and the Local Church in the short period between her arrival in Australia and the hearing, for the purpose of strengthening her claim to a protection visa.  When it said it disregarded the appellant’s conduct in attending the Local Church in Sydney, it dismissed her claims to have been a member in China.

56                       But moreover, it found, as a fact that ‘… it does not accept that she is currently a genuine practitioner’ (my emphasis).  There is nothing in her claim for a protection visa, the delegate’s decision, or in the tribunal’s statement of decision and reasons which put the appellant on notice before the tribunal’s decision was made that the appellant had engaged in conduct here to strengthen her claim and that such conduct, went to her credibility.  Nor could the s 424A letter that was sent after the hearing raise any new issue so as to satisfy the requirement in s 425(1) that the tribunal invite the applicant for review to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review:  SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870 at [59] per Besanko J.

57                       The appellant had no opportunity to give evidence or to make submissions, in accordance with s 425(1), that she had not just learnt what she knew about Christianity and the Local Church since arriving here.  That was a denial of procedural fairness:  SZBEL 228 CLR at 165 [44].

58                       The tribunal’s statement of its decision and reasons indicated that it asked the appellant about basic Christian doctrine as well as doctrines of the Local Church.  The tribunal questioned the appellant as to her selection of the Local Church as opposed to some other denomination.  Although it did not have an obligation to set out everything that occurred at the hearing, I infer from the detail of its recitation of the questioning and answers at the hearing that it had set out the substance of all of the matters which it regarded as having significance to its function of conducting a review.  While there is no transcript in evidence, nonetheless I am satisfied, in accordance with s 140 of the Evidence Act, that the tribunal did not ask the appellant why her account of being a Christian should be rejected:  SZBEL 228 CLR at 166 [47].

59                       There is nothing in the tribunal’s account of what occurred at the hearing to suggest that the appellant had been put on notice that the genuineness of her Australian participation in the Local Church’s activities was in issue, as opposed to the level at which she claimed she participated.  The tribunal did not record that the appellant had made any claim that her attendance at the Local Church in Sydney or religious practice in Australia supported her claim for a refugee visa.  The tribunal said it disregarded this conduct, in assessing her case as required by s 91R(3).  But instead of disregarding the conduct it used this conduct to find against the appellant.  The tribunal’s only investigation of what the appellant did in Australia in relation to the Local Church was to confirm the content of the letter concerning her attendance.  It then speculated about the inability of the appellant to provide ‘… details of the Local Church which the Tribunal would expect would be known by someone who had genuinely been a member since March 2005, including approximately six months practice in Australia’ (emphasis added).  This was one of the matters it stated had led it to conclude that she was not credible and had not become a member of the Local Church.  Yet the tribunal’s decision record does not record any account of the appellant being questioned about practice in Australia except simply in relation to her attendance at the Blacktown Local Church.

60                       In SZBEL 228 CLR at 166 [47] the Court said:

‘But where, as here, there are specific aspects of an applicant’saccount, 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.’  (non-italic emphasis added)

61                       This does not mean that the tribunal has to identify to the applicant for review the significance of the questions it puts or the ultimate issue to which the questions go, as Emmett, Weinberg and Lander JJ held in Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at 302 [87]-[89].  Nor does the tribunal need to give a running commentary on its thought processes.  Nonetheless the tribunal must ensure that it identifies to the applicant for review the issues arising in relation to the review, in accordance with s 425(1) and gives him or her a real opportunity to give evidence and to present arguments on them.  I am of opinion that the tribunal did not do so in respect of the issues under s 91R(3) and what it expected the appellant ought to have known based on her attendances at the Local Church in Australia.

62                       I am grateful for the assistance I received from counsel for the parties and, in particular, for the willingness of counsel to act for the appellant pursuant to Order 80 of the Federal Court Rules.

63                       The appeal should be allowed.

Associate:

Dated:         16 June 2008