FEDERAL COURT OF AUSTRALIA

SZMHL v Minister for Immigration and Citizenship [2009] FCA 581

SZMHL v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1426 of 2008

PERRAM  J

27 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs in the sum of $3,484.

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 applied to the Minister for Immigration and Citizenship for a protection visa, being the kind of visa granted in this country to persons who, broadly speaking, have a well-founded fear of persecution in their country of origin.  The appellant’s country of origin is the People’s Republic of China and the appellant herself is from Longtian Town in Fuqing City, Fujian Province.  She arrived in Australia in July 2007 and applied for a visa shortly afterwards.

2                                             The procedures by which visas in general and protection visas, in particular, are granted are of considerable complexity.  Generally, however, the process is divided into two phases.  In the first phase, the application for a protection visa is considered on its merits by the Minister, or his delegate, and by the Refugee Review Tribunal (“the Tribunal”); in the second the courts consider whether the decision-making processes of the Tribunal have involved legal error.  That statement is perhaps a little simplistic but it serves to identify the critical difference between the two phases, which is that the first, culminating in the Tribunal, is about substance and that the second, culminating in the judicial branch, is about form.

3                                             In this case, the appellant gave an extensive account to the Tribunal to make good her entitlement to a protection visa.  It is unnecessary to dwell upon much of the detail of that account.  For present purposes, however, it is pertinent to note that the Tribunal rejected four aspects of her account.  These were:

(a)                a claim that she organised a protest on 8 March 2007;

(b)               a claim that she was subsequently arrested for organising anti-government activities and detained for one month;

(c)                a claim that she was prosecuted by police and authorities during her claimed period of arrest; and

(d)               a claim that she was mistreated by the police and the other authorities at various other times.

4                                             The Tribunal rejected these aspects of the appellant’s account because it concluded that she was not a credible witness.  It came to that conclusion for reasons which it expressed in these terms:

The Tribunal did not find the applicant a credible witness as the hearing.  Her description of how she organised the protest lacked detail and appeared simply to rehearse points made in her written statement.  The Tribunal does not accept, for example, the applicant’s claim that the banners prepared for the putative protest would have the sole word “Protest” written on them rather than some reference to the reason for the protest.  Although the applicant said that she was aware that the protest was held on International Women’s Day, she did not mention any broader concerns about the protection of women’s rights at the hearing, saying only that the purpose was to protest the lack of protection given to the partners in running their business.  Similarly she was unable to describe in any credible detail her experiences while in detention.

5                                             Those reasons refer to a hearing which was attended by the appellant on 3 April 2008 at the Tribunal’s offices in Clarence Street in Sydney.  It is apparent that a particular line of questioning during that hearing also contributed to the Tribunal’s adverse view about the credit of the appellant as a witness.  The appellant’s account of her departure from the People’s Republic of China was that she left with the help of friends and by having bribed certain unidentified persons.  It does not seem to have been in dispute, however, that she left the People’s Republic on her own passport.

6                                             During the course of the hearing the Tribunal referred to advice from the Department of Foreign Affairs and Trade (“DFAT”) that China’s laws relating to the departure of Chinese nationals from that country indicated that certain specified groups of persons of adverse interest to the authorities were typically not allowed to leave China.  The Tribunal intimated to the appellant that the fact that she was permitted freely to depart on her own passport might be seen as indicating that she was not of particular adverse interest to the authorities.  The appellant’s answer to this was to indicate that she had a friend with relevant contacts who was able to ensure that she was not included on the blacklist maintained by the authorities.  Being confronted by the Department’s advice at short notice during the hearing presented, of course, the possibility of some procedural unfairness to the appellant.  However, the Tribunal asked the appellant whether she needed any more time to respond to the Department’s views.  The Tribunal’s reasons record that she did not request any further time.

7                                             The Tribunal then proceeded to conclude that the fact that the appellant was permitted freely to leave the People’s Republic suggested that she was not of any particular adverse interest to the authorities.  In coming to that conclusion, it did not make any finding either that it accepted or that it rejected the appellant’s account that she had been able to leave by paying a friend to ensure that she was taken off the blacklist.  Having disbelieved the critical elements of her account the Tribunal, unsurprisingly, affirmed the delegate’s decision to refuse her visa application.

8                                             The Tribunal does not have jurisdiction to make jurisdictional errors of law.  In the event that it does, the Federal Magistrates Court is empowered to set aside its decisions.

9                                             The appellant commenced proceedings in the Federal Magistrates Court seeking to set aside the Tribunal’s adverse conclusions on the basis of what she alleged were errors of law on its part.  Two such areas were identified by her in the Federal Magistrates Court.  These were:

(a)                It was apparent from the Tribunal’s reasons that it had disbelieved her in relation to a number of matters.  The appellant claimed that the Tribunal should have put to her the adverse views it had formed of her account in order to give her an opportunity to respond.

(b)               The Tribunal asked the appellant whether she needed more time to respond to the information concerning the difficulties that persons of interest to authorities had in leaving the People’s Republic of China on their own passports.

10                                          The record of the Tribunal’s decision does not record that it asked her to comment upon that information or to inform her that she could ask for more time in which to do so.  The appellant claimed that the Tribunal committed an error of law in failing to inform her of those two matters.  The federal magistrate dismissed both of these grounds.  Her Honour dismissed the first on the basis that the thought processes which led the Tribunal to reject her evidence were not, themselves, matters which needed to be put to her.  As to the second ground, her Honour was of the view that the information concerned was from DFAT and was “country information”.  There was, her Honour reasoned, no obligation on the Tribunal to give the appellant an opportunity to comment on that kind of information.

11                                          In those circumstances, her Honour dismissed the application before her with costs.  The appellant now appeals to this Court.  She advances the two grounds previously advanced to the learned federal magistrate and an additional ground to the effect that the Tribunal’s findings were based on unwarranted assumptions and that it mistreated, or misunderstood, the information or evidence given by her.

Grounds 1 and 2

12                                          In my opinion, the federal magistrate was entirely correct to reject these grounds.  The Tribunal rejected the appellant’s contentions on the basis of its own subjective assessment of her claims.  For example, it did not accept as credible the proposition that her protest signs would have had only the word “protest” upon them.  So, too, the Tribunal was unpersuaded by her inability to give any detail of her account whilst under arrest.  Section 424A of the Migration Act 1958 (“the Act”), upon which the appellant relies, does impose upon the Tribunal an obligation to give a person such as the appellant particulars of any “information” that the Tribunal considers would be part of the reason for rejecting an applicant’s claims.

13                                          However, internal processes of reasoning are not “information” both as a matter of ordinary English and also as a matter of authority: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

14                                          As to the second ground, it is true that the Tribunal appeared not to tell the appellant when confronting her with the DFAT advice that she could comment on that advice or seek more time in which to do so.  For myself, I would tend to think that the appellant probably did get an opportunity to comment upon the DFAT information since she dealt with it by suggesting en passant that she bribed her way off the list.  However, the matter need not be decided on that basis.

15                                          Instead, it is sufficient to note that the Full Court of this Court has held that a failure to provide such opportunities – more formally, to comply with section 424AA(b) – is not a jurisdictional error: see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [79] per Tracey and Foster JJ.  The learned federal magistrate’s decision was delivered before SZMCD but her reasoning was effectively the same.  That reasoning is that s 424AA is a facultative provision, non-compliance with which has no intrinsic legal consequences.  In this case, the only point of s 424AA was to permit the Tribunal to comply with any obligation it had to provide “information” to the appellant during the course of the hearing.

16                                          The “information” relied upon by the appellant was the DFAT advice.  Ordinarily, that might well be regarded as “information” but s 424A(3) changes that meaning so that it does not include information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.  Clearly, the DFAT information was of that kind.  It follows that the Tribunal had no obligation to put the DFAT information to the appellant and its failure to comply with the facultative aspects of s 424AA came to nothing.  At best, it erred in doing something which it did not need to do.

Ground 3

17                                          The third ground of appeal is an allegation that the federal magistrate “was wrong in finding that the Tribunal acted properly in its findings”.  This is particularised as a complaint that the Tribunal based its findings on unwarranted assumptions and had misstated or misunderstood the information or evidence provided by the appellant.  This ground was not raised below.  It does not identify a jurisdictional error.  Leave would be required to permit it now to be raised.  Since it has no legal merit, even in a vacuum, I decline to grant leave to raise it at this stage.  In those circumstances, I do not need to deal with it.

Other matters

18                                          It will be recalled that the Tribunal used the DFAT information to conclude that the appellant was not of particular interest to the authorities.  The appellant gave an answer to this at the hearing which was that she had paid a friend to ensure that she was not included on the blacklist.  The Tribunal made no express finding about that matter.  If accepted – that is, the appellant’s account – it was capable of explaining away the significance of the DFAT material.  The Tribunal is obliged by s 430(1)(c) of the Act to set out its findings on material questions of fact.  As Gleeson CJ explained in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 330 [5], the failure by the Tribunal to make a finding on a particular matter may lead to an inference that the matter was not thought to be material.  However, it need not lead to that inference nor, as the Full Court’s decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [46]-[47] shows, need it mean that the matter was not considered.

19                                          In that regard, the Full Court in WAEE noted the distinction between matters which, if adverted to, might have led to a different finding of fact and matters which may have led to a different conclusion on the central question before the Tribunal.  Nor should the inference under consideration lightly be drawn.  As the Full Court said at 641 [47]:

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some pint.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

20                                          Here the Tribunal had adverted to the matter by recording the appellant’s submission.  It is unlikely, in those circumstances, that the matter was not taken into account.  The better view is that the Tribunal, having disbelieved the central part of the appellant’s claims, also disbelieved this aspect of it as well.  No ground was raised about this matter but it seems to me to be the only part of the appellant’s position which was, or may have been, of merit.  Having examined it, I do not think that it would have entitled the appellant to succeed and I mention it only as a matter of completeness.  In those circumstances, the appeal must be dismissed with costs.

21                                          The appeal is dismissed with costs in the sum of $3,484.

Associate:

Dated:         4 June 2009