FEDERAL COURT OF AUSTRALIA

SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 

MIGRATION – the Refugee Review Tribunal used financial information to question the applicant at a hearing – the financial information was provided in support of a visa application other than the visa application under review by the Tribunal – whether the information undermined the applicant’s Convention based claim – whether the information “would be the reason, or a part of the reason” for affirming the delegate’s decision – whether s 424(1) applied to the information

Migration Act 1958 (Cth) ss 424A(1), 424A(2A), 424A(3)(b), 424A(3)(ba), 424AA, 425

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483

SZMFZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1328 of 2008

SIOPIS J

12 december 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is allowed.

2.                  Orders 1 and 2 of the Federal Magistrate made on 31 July 2008 are set aside.

3.                  The decision of the second respondent signed on 9 April 2008 is set aside and the matter is remitted to the second respondent to be dealt with according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant is a citizen of China who arrived in Australia on 4 July 2007.  On 17 August 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

2                     In support of her application for a protection visa, the appellant lodged with the department a statutory declaration setting out her claims.  The appellant claimed to have a well‑founded fear of persecution in China because she had breached the “one child” policy, having given birth to five children between 1985 and 1997.  She claimed that after the birth of her second child she went into hiding to avoid a sterilisation operation, but she was discovered by authorities and tortured.  She said that after each of her third, fourth and fifth children she was forced into hiding, but each time she was discovered by the authorities and beaten.

3                     The appellant also claimed that she had faced discrimination and economic hardship arising from the breach of the “one child” policy.  This was because it was necessary for her and her husband to pay for the education and health care for those of her children who were born outside the “one child” policy.  The appellant claimed that this policy of requiring parents to support the education and health care of their children imposed an overbearing economic burden.  The appellant said that one of her neighbours, Ms Shi had committed suicide because her family was unable to afford expensive tuition and accommodation fees for their daughter who had been born outside of the birth control policy.  The appellant said:

Like me, Ms Shi was regarded as a person who had seriously violated against “Birth Control” policy, and therefore, her children were inevitably subjected to unfair treatment.  As a result, she had to undertake huge tuition fee, which made her suffered [sic] from tremendous pressure; and eventually, she killed herself in order to permanently escape from tremendous pressure.

4                     The appellant went on to say that she and her husband had, with the help of her husband’s friend, arranged for their third daughter to come to Australia as an overseas student “in order to guarantee her to accept normal education”.

5                     The appellant also claimed that she had suffered persecution as a consequence of having participated in a movement to protest against the discrimination of children born outside of the “one child” policy.  She claimed that a fellow campaigner, Mr Bin He, was arrested and that she advocated for his release.  She claimed that she was subjected to investigations by the police on five separate occasions from April to May 2007.  The appellant said that she actively assisted in the distribution of propaganda materials urging the Government to release Mr He.  On 16 July 2007, five fellow activists were arrested by the Public Security Bureau and owing to their confessions the police became aware of her active involvement.  She claimed that she would be immediately arrested if she returned to China.

6                     A delegate of the first respondent refused the application for a protection visa on 13 November 2007.

THE TRIBUNAL

7                     On 14 December 2007, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.  The appellant was invited to a hearing under s 425 of the Migration Act 1958 (Cth) (the Act) by the Tribunal.

8                     Among the documents in the Tribunal’s possession at the hearing, were documents which comprised the student visa application made to the department by the appellant’s third daughter.  The appellant’s daughter’s student visa application was supported by a declaration made by her father, the appellant’s husband, as to the financial resources available to support his daughter as a student in Australia.  The declaration stated:

I am the father of the applicant.  I have been the general manager of a company since March 2002 to present.  So I have regular annual income.  I deposited part of my income into my wife’s account as part of the family saving.

9                     There then followed a list of 10 deposits made during the period 2002 to 2005.

10                  The third daughter’s student visa application also stated that her father’s annual income was RMB139,600 and disclosed the amount of available savings as RMB496,500.  It is apparent from the content of the document that its purpose and effect was to indicate that the appellant and her husband have sufficient financial resources to support their daughter in Australia.

11                  The student visa application and related documents are at pp 44‑64 of the appeal book.  The first page of the document contains the following handwritten notation:

Copied from file [name of visa applicant and file number].

12                  The appellant attended a hearing before the Tribunal on 12 March 2008.

13                  The Tribunal did not write to the appellant before the hearing, nor at any time thereafter, asking her to comment on any of the information, including the financial information, in the student visa application and the supporting documentation.

14                  At the hearing, however, the Tribunal asked the appellant about the information contained in the student visa documentation in relation to her Convention claim that she feared that she would suffer financial hardship and discrimination by having to support her children’s education and health care expenses.

15                  The following is an extract from the decision of the Tribunal:

The Tribunal asked her if the children were registered why they could not go to a government school, she said they had to pay more money and one term was over 10,000 Yuan.  The Tribunal put to her that if she was finding it difficult to pay how were they able to afford to send two of the children to boarding school.  She said she could not find places for all the children to live so she put them in boarding school.  The Tribunal put to her that it found it difficult to believe that she had difficulty paying the fees when her daughter is in Australia having a very expensive education by Chinese standards, and it is therefore difficult to believe she does not have enough money to pay for the education.  She said she does not have much money.

The Tribunal then asked questions about her daughter’s student application.  She said her husband’s friend helped to lodge the application and that the uncle helped pay money for the fees.  The Tribunal put to her that in her daughter’s application for a student visa it said that her husband’s income was 139,000 Yuan, she said this was that made up by a friend.  The Tribunal put to her that there are documents in the student application showing that she and her husband have much savings, she said these are false.  The Tribunal put to her that if the uncle is paying why they would not put his documents in, she said the friend helped.  The Tribunal put to her that it questions whether she is a witness of truth because her oral evidence contradicts the documents and evidence in the student application.

16                  The Tribunal considered each of the appellant’s claims separately and rejected them.

17                  As to the claim founded on her breach of the “one child” policy, the Tribunal found that the “one child” policy was applied generally and that it did not ordinarily constitute persecution for the purposes of the Convention.  The Tribunal was satisfied that there was nothing special about the appellant that would result in the law being applied differently to her in the future.  The Tribunal found the appellant did not have a well‑founded fear of persecution on the basis of her breach of the “one child” policy.

18                  As to the appellant’s claim that she feared economic hardship and discrimination, the Tribunal said:

The applicant claims economic hardship or discrimination because of the additional tuition fees, health and medical care costs she has to pay for her three children born outside the birth plan.  She claims to have to [sic] worked very hard to pay the extra tuition fees, placing her in economic hardship and that such stress led her neighbour to commit suicide.

The Tribunal accepts that extra fees may have to be paid but as was her evidence at hearing these are paid by relatives and friends.  Further, as was put to the applicant at hearing, the Tribunal has doubts that she has difficulty paying the tuition fees and other costs for her children born outside the birth plan when her daughter is studying in Australia, an expensive education and the other two children are in boarding school, all being paid for by relatives.  In response she indicated she does not have much money, and later said she is bullied because she is illiterate and wants her children to have a good education.

The Tribunal finds that the difficulty paying the fees does not amount to serious harm as exemplified by s 91(R)(2) of the Act as it is not of the magnitude of the examples set out in that section and not of the level of significant economic hardship placed on her, as the fees are paid by relatives and her daughter is able to undertake paid study in Australia.  If it was economic hardship it is not plausible that her daughter could be an overseas student.  While she may have suffered some discrimination in that the children have to pay school fees and health care fees this has not affected her capacity to subsist or to earn a livelihood, as these fees are being paid for by others and her daughter has been able to obtain an overseas paid education.  She also gave evidence that she was able to work.

19                  As to the third ground, the Tribunal found the appellant’s claim relating to her involvement in the campaign regarding children born outside the “one child” policy lacked in detail and was internally inconsistent.  The Tribunal concluded that the appellant was not targeted in China for being involved in the campaign and did not accept that she would be arrested for these activities should she return to China.

20                  The Tribunal, accordingly, affirmed the decision of the delegate not to grant the appellant a protection visa.

THE FEDERAL MAGISTRATES COURT

21                  On 13 May 2008, the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  Before the Federal Magistrate, the appellant relied upon three grounds of review.

22                  First, the appellant contended that the Tribunal had failed to comply with s 424AA of the Act in not advising her that she could seek additional time to consider her response to the information regarding her and her husband’s financial resources which had been provided as part of her daughter’s student visa application; and in not advising her of the potential effect of the information for her protection visa application.

23                  The Federal Magistrate found that the Tribunal has discretion as to whether to embark on the procedure as prescribed by s 424AA of the Act.  The Federal Magistrate found no evidence in the material before the court that the Tribunal embarked on the procedure set out in s 424AA of the Act and, therefore, found no contravention of that section by the Tribunal.

24                  Secondly, the appellant contended that the Tribunal had in rejecting her claim referred to the financial support that was available for her daughter to study in Australia, but had failed to comply with s 424A(1) of the Act as it did not provide particulars of that information in writing and ask for her comment.

25                  The Federal Magistrate referred to SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) and found that the information in the daughter’s student visa application, “[o]n its face…did not undermine” the appellant’s claim.

26                  Further, the Federal Magistrate observed:

The information is inconsistent, however, with other information given by the applicant in support of her application for a protection visa to the effect that she did not have much money.  So, when the Tribunal expressed its doubts that the applicant had difficulty paying tuition fees, it was simply making an observation about inconsistency in the applicant’s own evidence and, as such, this would not be information which invoked obligations under s 424A(1) of the Act.

27                  The Federal Magistrate also found that the information about the appellant’s “daughter undertaking paid study” in Australia fell within s 424A(3)(ba) of the Act as it was information given by the appellant during the process that led to the decision under review.  The Federal Magistrate also said that the appellant gave “evidence…about her daughter’s study in Australia which comes under the exception in s 424A(3)(b)”.

28                  Thirdly, the appellant contended that the Tribunal had failed to consider the appellant’s daughter’s evidence properly and failed to consider photographs submitted by the appellant.  The Tribunal also failed to consider independent country information that supported the appellant’s claim.

29                  In relation to the third ground, the Federal Magistrate found that the Tribunal did consider independent country information, did consider the appellant’s daughter’s evidence and did refer to the photographs submitted by the appellant.  The Federal Magistrate dismissed the claim as it was an attempt to re‑argue the appellant’s factual claims and amounted to an impermissible merits review.

30                  The Federal Magistrate, having found no jurisdictional error in the Tribunal’s decision, dismissed the application.

THE APPEAL

31                  The appellant filed a notice of appeal which raised in effect the same three complaints as were comprised in the grounds of review.  I have treated the grounds of appeal as comprising a complaint that the Federal Magistrate erred in not making the findings contended for in each of the grounds of review.

32                  In view of the decision to which I have come, it is only necessary to deal in detail with the grounds of appeal based on the second of the grounds of review, namely, that the Federal Magistrate erred in failing to find that the Tribunal contravened s 424A(1) of the Act in that it failed to provide the appellant with particulars in writing of the information in the financial support documents comprising part of the daughter’s student visa application.

33                  The first respondent supported the Federal Magistrate’s finding that the relevant information did not undermine the appellant’s Convention claim.  Further, the first respondent contended that, whilst the Tribunal had had regard to the financial information in the student visa application in questioning the appellant during the hearing, the Tribunal’s reasons showed that that information had not formed part of the decision of the Tribunal to affirm the delegate’s decision.  Accordingly, so the first respondent contended, the obligation on the Tribunal to comply with the process in s 424A(1) was not enlivened.

34                  The relationship between the Tribunal’s published reasons and the circumstances in which the obligation under s 424A(1) of the Act is enlivened was considered in the case of SZBYR.  At 615, at [17] of SZBYR, the majority of the High Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) observed:

Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”.  The statutory criterion does not, for example, turn on “the reasoning process of the tribunal”, or “the tribunal’s published reasons”.  The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place.  The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act.  The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the tribunal’s particular reasoning on the facts of the case.  Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa.  The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention.  When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.  Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations.  Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

35                  The decision in SZBYR was recently considered by Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 (MZXBQ).  At 492, at [27], Heerey J observed:

SZBYR 81 ALJR 1190; 235 ALR 609, and in particular [17] of the majority judgment, essentially says that the Tribunal must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal.  For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa.  If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa.  It would “undermine” his claims to have well‑founded fear of persecution by reason of religion.  By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility.  If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention.  This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.

36                  It follows that it is the relationship which the information in question has to the content of the Convention claim made by the applicant before the Tribunal that is a significant consideration in determining whether it is information in respect of which s 424A(1) applies.  Further, the assessment of whether the information enlivened the obligation on the Tribunal under s 424A(1) is made by reference to the time at which the Tribunal becomes aware of the information.  Accordingly, and significantly, in light of the submission made by the first respondent, the assessment is not dependent upon the use that the Tribunal subsequently made of the information, although, in my view, that may be a relevant consideration in drawing inferences as to the proper characterisation of the information.

37                  At the heart of the appellant’s Convention claim based on economic hardship and discrimination arising from the “one child” policy, was the appellant’s claim that she and her family were financially stressed and would suffer economic hardship and prejudice by reason of having to support the children who were born outside the “one child” policy.

38                  I infer from the handwritten notation on the daughter’s student visa application referred to at [11] above, that all the copy documents comprising the student visa application, had found their way to the Tribunal from the daughter’s student visa application file held by the department.  Further, I infer from the fact that the Tribunal was able to, and did, ask the appellant questions about this information at the hearing, that it was aware of this information by the commencement of the hearing.

39                  Accordingly, by the time of the hearing, the Tribunal had information from a departmental file, other than the appellant’s protection visa file, that showed the appellant’s husband had a comparatively well paid job and that she and her husband had accumulated a comparatively large amount in savings over the course of three years.  The information, if accepted, therefore, substantially undermined the Convention claim made by the appellant.  Accordingly, the information fell within the category of information referred to by the High Court at 615, at [17], of its judgment in SZBYR and into the first category of information referred to by Heerey J in MZXBQ.  Further, I infer from the obvious adverse nature of the content of the information and from the fact that the Tribunal used it in the course of the hearing to question the veracity of the claim made by the appellant that she was financially stressed, that, at least by the time of the commencement of the hearing, the Tribunal considered that the information would be part of the reason for affirming the decision of the delegate to refuse the application for the protection visa.

40                  It follows from those findings, and from the application of the principles referred to in SZBYR and MZXBQ, that by the commencement of the hearing the information was of the character that fell within s 424A(1) and that, therefore, the Tribunal was obliged to comply with s 424A(1) or take the alternative steps open to it under s 424A(2A) and s 424AA.  It is accepted by the first respondent that the Tribunal did not advise the appellant of the information in writing in accordance with s 424A(1), nor did it undertake the alternative process contemplated in s 424A(2A) and s 424AA.

41                  It follows that, in my view, the Federal Magistrate erred in concluding that relevant information in the student visa application was not information which undermined the Convention claim made by the appellant in respect of economic hardship and discrimination.  The reasoning of the Federal Magistrate on this issue is not well exposed.  However, it appears that the error is founded on the misapprehension by the Federal Magistrate that the appellant’s complaint was that she was not asked to comment on the information that her daughter had applied for a student visa to undertake paid study in Australia, rather than the more specific complaint that she was not asked in writing to comment on the adverse information in the financial support documents accompanying the student visa application which showed that she and her husband were, comparatively speaking, well off financially.  Alternatively, based on his comments at [67] of his reasons, set out at [26] above, the Federal Magistrate may have been of the view that the financial support information was information which went only to credibility and not to the heart of the Convention claim and did not, therefore, invoke s 424A(1) of the Act.

42                  Further, in my view, the Federal Magistrate erred in determining (as he appears, at least implicitly, to have determined) that the information the subject of the appellant’s complaint, was information which fell within the ambit of s 424A(3)(ba) or s 424A(3)(b) of the Act.  Again, the Federal Magistrate’s reasons for these findings are not well exposed.  However, as I have previously said, it appears that the Federal Magistrate misconstrued the precise nature of the information that was the subject of the appellant’s complaint.  Had the Federal Magistrate properly apprehended the nature of the appellant’s complaint, it would not have been open to the Federal Magistrate to make the findings which he appears to have made.  This is because it is apparent from the face of the student visa application documentation which is referred to at [11] above, that this information was not provided by the appellant, but was copied from another file held by the department, namely, the appellant’s daughter’s student visa application file.  Accordingly, this ground of appeal succeeds.

43                  As to the ground of appeal based on the first ground of review, in my view, the Federal Magistrate did not err in concluding that the Tribunal did not seek to embark upon the process provided for in s 424AA.  Further, as to the ground of appeal based on the third ground of review, in my view, for the reasons which he gave, the Federal Magistrate did not err.

44                  The first respondent did not submit this was a case where, notwithstanding that the Tribunal did not comply with s 424A(1) of the Act, relief should be withheld on discretionary grounds.

45                  Accordingly, the appeal is allowed and the decision of the Tribunal set aside.

Associate:

Dated:         12 December 2008