FEDERAL COURT OF AUSTRALIA

SZRRN v Minister for Immigration and Citizenship [2014] FCA 77

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration and Border Protection”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs in the lump sum of $ .

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1    This is an appeal from a decision of Federal Magistrate Driver (as he was then known) delivered on 1 February 2013 to dismiss an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 27 June 2012. The Tribunal affirmed the decision of the delegate (Delegate) of the first respondent (Minister) made on 24 May 2011 not to grant the appellant a Protection (Class XA) visa (protection visa): SZRRN v Minister for Immigration [2013] FMCA 3 (SZRRN). I will refer to the Tribunal as constituted on 27 June 2012 as the Second Tribunal.

2    The Federal Circuit Court of Australia Amendment Act 2012 (Cth) came into effect at midnight on 11 April 2013. The Federal Magistrates Court continues its existence as the Federal Circuit Court of Australia and a Federal Magistrate is now known as a judge of that Court. In preparing these reasons, I have retained the terminology of Federal Magistrate and Federal Magistrates Court for ease of reference.

3    The Second Tribunal invited the appellant to attend a hearing on 26 June 2012, but the appellant did not appear and the Second Tribunal proceeded to make its decision under s 426A of the Migration Act 1958 (Cth) (Migration Act). The appellant had attended a hearing on 20 July 2011 with a differently constituted Tribunal (First Tribunal). The First Tribunal affirmed the Delegate’s decision. On 20 January 2012, the Federal Magistrates Court dismissed the appellant’s application: SZQTB v Minister for Immigration & Citizenship [2012] FMCA 32; the appellant had been assigned a different pseudonym in those proceedings. The appellant appealed that decision to this Court and on 18 May 2012, Katzmann J made orders by consent setting aside the orders of the Federal Magistrates Court and granted constitutional relief quashing the First Tribunal’s decision and requiring the Tribunal to decide the appellant’s review application of 31 May 2011 according to law. I have not been advised of the grounds of complaint about the First Tribunal’s decision nor have I been provided with a copy of the First Tribunal’s decision record.

Background

4    The appellant is a citizen of the People’s Republic of China (China) who arrived in Australia on 3 May 2008 on a student visa and a passport issued in China in 2007. The appellant lodged her visa protection application with the Department on 12 April 2011. It was accompanied by a written statement of her claims to protection. She was detained in the Villawood Immigration Detention Centre at the time. She had the assistance of the Legal Aid Commission of New South Wales (Legal Aid) to prepare the application and she nominated an officer of Legal Aid for receipt of written communications.

Claims in visa application

5    The claims in the appellant’s visa application and accompanying statement are set out below.

6    The appellant is a Christian and was baptised in February 2008 in China.

7    Her mother was injured at the textile factory where she worked in 2005. The appellant’s mother was assisted in obtaining medical assistance by a friend who revealed that she was a Christian. From then on people gathered at the appellant’s family home to talk about God and her mother took the appellant to join their family gatherings, referred to as Shouter activities.

8    In December 2006, the appellant and her mother attended a gathering to celebrate Christmas. The police broke up the gathering and claimed it was illegal. Ten people, including the appellant and her mother, were taken to a detention centre. Her mother was detained for a month, fined 5000 yuan and beaten by the police. The appellant was detained for a week during which time she was slapped by the police; as she was a student, she was released after signing a “guarantee letter” that she would not attend gatherings. The person at whose premises the gathering had been held was detained for three months and required to sign a document promising not to attend gatherings. The police told the manager at her mother’s work that her mother was a Christian and she was dismissed; after that she could only do casual work.

9    In March 2007, her mother escaped another police raid on a gathering. Her mother disappeared and the appellant has not spoken to her since. After that, the police regularly visited her home.

10    The appellant’s mother sent her to live with a “church sister” with whom the appellant lived until she came to Australia; the appellant calls the church sister “mother” (church mother). Her church mother would not tell the appellant where her mother was. When the appellant asked about her mother, her church mother would just say that she was okay.

11    However, all of this affected the appellant’s school life because the police went to her school on a regular basis to take statements about her mother’s whereabouts; she was asked to take off time from school and was discriminated against by classmates and teachers.

12    The appellant’s church mother understood her and asked whether the appellant wished to change her environment so that she could grow up healthy. She helped the appellant to find an agent to send her overseas. “It is known that Australia is a free democracy, a country with human rights, so I chose Australia. I wanted to be able to serve my Lord freely so on 3 May 2008 I arrived in Australia.”

13    The appellant “studied very hard and [her] academic performance was all right” after she came to Australia. However her father had an accident on a construction site in China and lost his capacity to work through back injury. His medical bills exceeded the compensation he was paid and the family owed a lot of money. Without an income, the appellant had to stop going to school and find a job to support her life in Australia.

14    The appellant attended church in Australia.

15    On 5 April, the appellant telephoned her church mother and said that she was in detention and might be returned to China. Her church mother told her it was dangerous because there were no family members there. The appellant and her brother had lived with her church mother but in 2009 her brother had gone to live with their grandparents. Both grandparents had passed away but her church mother had not told her because she did not want the appellant to worry. New people had moved into her grandparents’ home but had paid no money for it. Her church mother would only say that the appellant’s parents were in a “safe place”.

16    She fears she will be arrested if she returns to China. She believes people will treat her distantly and neighbours will discriminate against her, gossip about her and may report her to the police. She is afraid she will have to hide like her mother and would not be able to practise her faith. She says that she “would face arrest and persecution.”

Interview with Delegate

17    The appellant was interviewed by the Delegate on 19 May 2011 and was advised by letter dated 24 May 2011 that the application was refused.

18    The Delegate was not satisfied that the appellant was a Christian as claimed. The Delegate found that:

    The appellant’s knowledge of the Bible was “superficial at best” and her answers were not fluent or comprehensive which was inconsistent with her claims that she read the Bible several times a week; reading the Bible is a central element of the Shouter faith.

    Her discussion of celebrating Christmas was not in keeping with adherence to the Shouter faith.

    The appellant’s practical involvement in her church in Australia was very limited, which was inconsistent with fleeing China so that she could exercise her faith openly. She attended services minimally (every two or three months) and could not name the church or pastor, which was telling.

    The Shouter religion is evangelical and demands its followers go out and preach: the appellant undertook “very minimal” proselytisation (if at all); her description of her activities was vague and unconvincing, she did not involve herself in fellowship classes and did not promote her faith beyond her circle of friends.

    If the appellant truly feared persecution, she would have lodged a protection application soon after arriving in Australia: she waited almost three years and lodged the application only after she had been found working in Australia without a valid visa resulting in her detention by the Department.

    Her claim that her church mother told her not to tell anyone about her religion contradicts her claim that the church mother’s advice was to come to Australia because of religious freedom.

19    The Delegate was not satisfied that the appellant had any real involvement in the Shouter Church in China or that she would practise upon her return to China and would therefore be subject to persecution. In the absence of contrary evidence, the Delegate accepted that the appellant may have been exposed to religion through her parents, that she may have experienced an altercation with the police in 2006 when she and her family were taken by police and that she had suffered discrimination while at school.

First Tribunal decision

20    Before the hearing with the First Tribunal on 20 July 2011, Legal Aid provided to the First Tribunal a range of materials. These included documents in Chinese with English translations, being: a statement from the appellant’s church mother dated 4 June 2011, confirmation of her baptism in February 2008 from an elder of the local church in China dated 2 June 2011, a detention certificate dated 24 December 2006 from the Public Security Bureau of her local area, and a release certificate dated 31 December 2006 from the Public Security Bureau of her local area in relation to her detention on 24 December 2006.

21    On 14 July 2011, Legal Aid provided to the First Tribunal a further statement by the appellant. In the statement, the appellant said:

After the decision of the delegate was read to me I understood some of the reasons why my protection application was refused. I want to submit the following statement to the Refugee Review Tribunal because I feel that there are issues and circumstances around the events of my protection claims that need further explanation so that my protection claims can be better understood.

The appellant went on to expand on how her faith developed in China, her detention and witnessing her mother being beaten, the impact of the loss of contact with her mother and her experiences of discrimination at school. She explained that she stopped going to school in Australia because she lacked financial support, her English was not very good, she felt under pressure, she worked six days a week in a chicken factory and she became depressed and disinclined to socialise. She explained that she did not attend church often because, in the face of the congregants’ enthusiasm and inquiries about the appellant’s life in China, she felt ashamed. She started to avoid going to church. She stressed her personal devotion. She reiterated her concern about returning to China because of the need to practise her faith underground, her fear of persecution and discrimination based on her Christianity.

22    On 18 July 2011, Legal Aid provided written submissions of “Country Information” regarding human rights in China which Legal Aid said showed that Christians are persecuted in China for their religious beliefs.

23    On 21 September 2011, the First Tribunal decided to affirm the decision of the Delegate. As mentioned above, this decision was quashed by consent and consent orders were made by Katzmann J of this Court remitting the review application back to the Tribunal for decision according to law.

Second Tribunal decision

24    On 30 May 2012, the Tribunal wrote to the appellant (through Legal Aid) and informed her that her case would be reallocated in accordance with the Court’s order. The letter advised that all future communications would be made through the appellant’s authorised representative unless she advised otherwise. The Tribunal also faxed a copy of the letter to the Villawood Immigration Detention Centre to be hand delivered to the appellant.

25    On 4 June 2012 (through Legal Aid) the Tribunal advised the appellant that it was not able to make a favourable decision on the material before it. The Tribunal invited the appellant to a hearing on 26 June 2012.

26    On the same day, the Tribunal wrote to the appellant (through Legal Aid) advising that from 4 June 2012 the Tribunal’s policy would change, and it would no longer send to the appellant a copy of correspondence with her authorised recipient (except in some circumstances which did not apply in this case). A copy of this letter was also faxed to the Villawood Immigration Detention Centre to be hand delivered to the appellant.

27    On 8 June 2012, Legal Aid wrote to the Tribunal and advised that it no longer acted for the appellant, that Legal Aid had had no contact with the appellant since notification of the Tribunal’s decision on 22 September 2011, that she was no longer located at the Villawood Immigration Detention Centre and Legal Aid had no forwarding address or current contact details for her.

28    On 12 June 2012, the Tribunal sent a copy of its 4 June 2012 invitation to a hearing by registered post to a residential address for the appellant in Sydney. It was the address which the Tribunal ascertained from the Department’s records as being the appellant’s address after she was granted community detention (and which remained her residential address at the time the Court heard her appeal).

29    The appellant did not attend the hearing on 26 June 2012. The Second Tribunal was differently constituted from the First Tribunal. A Tribunal officer attempted to contact the appellant on two mobile phone numbers, one of which was vacant and the other of which rang out. On 27 June 2012, the Second Tribunal affirmed the Delegate’s decision and on 28 June 2012 sent the record of decision to Legal Aid and copied it to the appellant at the residential address it had ascertained for her.

30    The Second Tribunal’s record of decision demonstrates that it considered: the appellant’s visa application and written statement, the recording of the appellant’s interview with the Delegate and the Delegate’s decision record, the materials referred to at [20]-[22] above and the record of the appellant’s evidence provided to the First Tribunal (including the fact that she was pregnant and feared that her child will be persecuted) as set out in its decision record and its reasons for affirming the Delegate’s decision.

31    The Second Tribunal summarised the findings of the First Tribunal at [32] as follows:

In affirming the delegate’s decision, the previously constituted Tribunal found that the delay in the lodgement of the application indicated that the applicant did not have a genuine fear of persecution in China. The Tribunal also found that the applicant did not display, during the hearing, a level of knowledge of Christianity commensurate with that of a person who was introduced to Christianity over 5 years ago. The Tribunal referred to the applicant’s lack of knowledge of the Old Testament and the New Testament and stated that when she was asked about the significance of the Last Supper, she initially stated that it was in memory of the Israelites leaving Egypt, but then stated correctly regarding communion. The Tribunal further stated that although she knew that the first book of the Old Testament is Genesis, and was able to relate the Ten Commandments, she did not know who they were given to and hesitated in responding to questions regarding where Jesus was born. The Tribunal noted that at her Departmental interview she displayed far less knowledge of Christianity. The Tribunal found that given her demeanour at the hearing and her hesitation in answering and tendency to change her testimony that her limited knowledge of Christianity had been rehearsed. The Tribunal further found that the applicant’s inability to describe the significance of the Last Supper and what happened at the Last Supper without hesitation is a further indication that she has not been a practising Christian from an early age. The Tribunal also found that her testimony in relation to the significance of the Lord’s Prayer, her description of the importance of Christianity in her life were far from persuasive evidence that she is a genuine practicing Christian.

32    The Second Tribunal noted the efforts made to contact the appellant to invite her to the hearing on 26 June 2012 and that the copy of the invitation letter sent to the appellant on 12 June 2012 was received at the Post Office on 13 June 2012 and remained uncollected. It noted that she had not provided any updated contact details to the Tribunal since her first application was made. The Second Tribunal was satisfied that it had made all reasonable efforts to contact the appellant and proceeded to make its decision under s 426A of the Migration Act.

33    The Tribunal said at [46] of the decision record:

As indicated above, the applicant has been interviewed by the Department and has had a hearing with a differently constituted Tribunal in which she elaborated on her claims to fear harm in China. However, the applicant was invited to appear before the current Tribunal in order to give evidence and present arguments and advised that the Tribunal was unable to make a favourable decision on the evidence before it. The Tribunal has been unable to locate the applicant and she has not contacted the Tribunal to provide an updated address, details of any legal representation, or any current telephone numbers to enable the Tribunal to contact her by telephone. The Tribunal invited the applicant to appear before it in order to explore in further detail her claims regarding her experiences in China. The Tribunal would have wished to discuss with the applicant her apparent limited knowledge of some important aspects of Christianity when interviewed by the delegate and the differently constituted Tribunal. Although considered by the previous Tribunal and the delegate, the Tribunal would also have wished to explore the issue of the delay in the lodgement of the application with the applicant during the hearing. The Tribunal would have also wished to discuss the applicant’s claims, as raised during the previous Tribunal hearing, as to her pregnancy and would have sought further evidence as to the birth of her child and whether she had any specific claims as to the affect that the child may have on her (the applicant) upon her return to China.

34    The Tribunal concluded at [47]:

Without the opportunity to discuss these issues in considerably greater detail, the Tribunal is not satisfied on the evidence before it that the applicant is a Christian or that she suffered serious harm in China for reasons of her religion. Nor is the Tribunal satisfied that there is a real chance that the applicant would be persecuted for reasons of her religion or for any other Convention reason in China now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.

Application to the Federal Magistrates Court

35    The appellant was represented by a solicitor in the proceedings before the Federal Magistrate. She advanced a single ground that was contained in an amended application filed on 6 December 2012:

The Tribunal failed to comply with s 424A(1).

Particulars:

The Tribunal considered that certain answers given by the applicant at an interview conducted by the delegate might be part of the reason for its decision [CB 179 (46)]. Those answers constituted information within the meaning of s 424A(1) and did not fall within any exception in s 424A(3). The Tribunal did not provide written particulars of that information and so failed to comply with the obligation under s 424A(1).

36    The Federal Magistrate summarised the appellant’s argument as follows at [33] of SZRRN (footnotes omitted):

The Tribunal did not give the applicant written particulars of answers she gave to the delegate’s questions concerning her knowledge of the bible or attempt to ensure in writing that the applicant understood why that was relevant to the review and the consequences of it being relied upon, or invite the applicant to comment or respond. The applicant contends that her oral answers given to the delegate were evidentiary material and accordingly constitute “information” within the meaning of s 424A. Further, the applicant contends that the highlighted words at [46] of the Tribunal’s reasons disclose that (regardless of the Tribunal’s ultimate reasoning) at the time the hearing invitation was issued to the applicant, the Tribunal apprehended that the applicant’s answers to the questions put by the delegate to test her knowledge of the Bible might be a reason to affirm the delegate’s decision because it tended to show that the applicant was not a Christian as she claimed.

37    The Federal Magistrate noted that the Second Tribunal referred “at length and in detail” to the interview conducted by the Delegate and in particular to the answers given by the appellant to the questions asked by the Delegate designed to test her knowledge of the Bible; he said that it was “fairly arguable” that the bolded words in [46] of the Second Tribunal’s decision record (see [33] above) are at least in part a reference back to that information. Ultimately, however, the Federal Magistrate concluded that the bolded words were not “a statement by the Tribunal that identified particular information that the Tribunal relied upon (or was disposed at any stage of the review to rely upon) to affirm the delegate’s decision.”

38    The Federal Magistrate held that the reference by the Second Tribunal to the appellant’s oral evidence given at the interview with the Delegate in the bolded words in [46] was nothing more than a statement that the Second Tribunal wanted to identify for an applicant at a hearing that an essential and significant issue in review was the credibility of her claim to be a Christian. The Federal Magistrate also held that there was “no possible interpretation” that the Second Tribunal’s wish to discuss the appellant’s pregnancy and whether she had any claims about the effect that the child might have on the appellant upon her return to China could be understood as a “reason for affirming the review” of the Delegate’s decision. The Federal Magistrate drew the same conclusion about the other areas that the Second Tribunal said, in [46], that it wanted to discuss with the appellant.

39    The Federal Magistrate accepted the Minister’s submission that the Second Tribunal affirmed the Delegate’s decision because it was not satisfied on the evidence before it. The Federal Magistrate held that the matters identified by the Second Tribunal at [46] of its decision record were not information within the meaning of s 424A but rather “gaps, defects or lack of detail or specificity” in the appellant’s evidence and applied the reasoning of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at [18] and of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (VAF) at [24]. The Federal Magistrate dismissed the application.

THE PRESENT APPEAL

40    The appellant filed her notice of appeal on 12 February 2013 and sought orders that the decision of the Tribunal or Minister be quashed and be remitted to the Refugee Review Tribunal for decision according to law. Her grounds of appeal were (as written):

Denial of natural Justice I am not gree the decision which from the federal Magistrates Court.

41    The appellant was not represented at the hearing and provided no written submissions. The Minister was represented and provided brief written submissions.

Re-agitation of abandoned ground

42    At the hearing, the appellant sought to pursue an argument that she had been denied natural justice because she had not received written notice of the hearing with the Second Tribunal on 26 June 2012 and only received a card advising her of the need to collect the Tribunal’s notification of the hearing from her local Post Office in early July. She referred to an affidavit which was not read in the proceedings before the Federal Magistrate, a copy of which the Minister’s representative provided to the Court but did not read. The appellant also tendered what purported to be a chain of emails in which the Post Office explained that it did not keep a record of the card notifications that there is registered post to be collected.

43    The Minister’s representative submitted that the appellant requires leave to rely on this ground of appeal because the appellant had originally raised it in the Court below but had sought and been granted leave to amend her application to abandon a natural justice argument in these terms and argue instead the ground which relied upon breach of s 424A of the Migration Act. Although it is common for this Court to grant self-represented parties some latitude in migration cases, the underlying principles for the grant of leave to advance a new ground or re-agitate a ground abandoned before the primary judge are founded in the fair and efficient administration of the justice system: see SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436 per Flick J at [10]-[15] and the cases cited there. The appellant was represented in the proceedings in the Federal Magistrates Court. Although the appellant said that she did not understand why her lawyer had taken the course adopted in the Federal Magistrates Court (or indeed why she was not now being provided with a lawyer) I do not consider this a sufficient explanation. I also consider that the ground does not have merit: the Second Tribunal took all steps prescribed by the Migration Act for inviting an applicant to a hearing and was entitled to make the decision under s 426A. I refuse leave to advance this ground.

Bare assertion of lack of natural justice

44    In its terms, the ground advanced by the appellant in her notice of appeal to this Court is a bare assertion of denial of natural justice and disagreement with the decision of the Federal Magistrate without particulars. Such a global claim is an invitation to merits review, which neither the Federal Magistrates Court nor this Court may undertake.

Breach of s 424A of the Migration Act

45    If the appellant’s ground of review may be interpreted as a complaint that the Second Tribunal denied her natural justice by the alleged breach of s 424A of the Migration Act which was considered by the Federal Magistrate, the Minister argues that it should be rejected for the reasons given by the Federal Magistrate.

46    Section 424A provides:

Information and invitation given in writing by Tribunal

(1)        Subject to subsections (2A) and (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)     invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)      The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    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; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)        that is non-disclosable information.

47    Section 424AA provides:

Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(d)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

48    The legislative background to these provisions, and in particular the amendments effected to the Migration Act by the Migration Amendment (Review Provisions) Act 2007 (Cth) (2007 Amending Act), was considered by the Full Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 per Tracey and Foster JJ (Moore J agreeing), with particular reference to s 424AA. Relevantly to the matters under consideration in this appeal, they said (emphasis in the original):

[62]    … for the purposes of Tribunal reviews of protection visa decisions, the natural justice hearing rule is embodied exhaustively in the provisions which comprise Div 4 of Pt 7 of the Act. In the present case, as will be already apparent, we are particularly concerned with ss 424AA and 424A.

…

[71]    The policy and purpose reflected in s 424A is that the Tribunal should be compelled:

(a)    To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;

(b)    To ensure that the visa applicant understands the significance of those matters to the decision under review; and

(c)    To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

…

[73]    Section 424A is obligatory. Non-compliance with its provisions will very often amount to jurisdictional error. Section 424AA is discretionary. Non-compliance with its provisions will result in the Tribunal not having the benefit of s 424A(2A). In that event, it must strictly comply with s 424A.

…

[80]    In our view, the legislature must be taken to have intended that the provisions of ss 424A and 424AA would operate in a coherent and complementary fashion. The two sections should be construed in a manner which gives effect to that intention.

[81]    Subject to subs (2A) and subs (3) of s 424A, the Tribunal is obliged to comply with the requirements of s 424A(1). No discretion is involved.

…

[88]    If the information under consideration by the Tribunal is the type of information covered by subs (3) of s 424A or if the Tribunal has engaged the provisions of s 424AA and complied with the requirements of that section, it need not meet the requirements of s 424A(1). This is because s 424A(2A) relieves the Tribunal of the obligation to do so if s 424AA has been complied with and s 424A(3) relieves the Tribunal of the obligation to do so if the information is of a kind covered by that subsection.

49    The Full Court noted with approval the comments of Lander J in SZMMP v Minister for Immigration and Citizenship (2009) 174 FCR 514 at [55]-[59]. Relevantly to this appeal, Lander J said at [55]:

A failure to comply with s 424AA merely means that s 424A(2A) is not engaged and the Tribunal is not excused from compliance with s 424A. That then means that the Tribunal must comply with s 424A. If the Tribunal is obliged to comply with s 424A it does not have to give the information in s 424A(3). Whichever way the Tribunal proceeds, whether under s 424A or s 424AA, the Tribunal does not have to give the information in s 424A(3).

50    Each of the issues identified in [46] of the Tribunal’s decision record (set out at [33] above) are matters appropriate to be dealt with at interview. In this case, the Second Tribunal could not carry through the exercise of any discretion to avail itself of the procedure under s 424AA (if any of the matters referred to at [46] can be characterised as enlivening the obligation imposed on the Tribunal by s 424A(1)) because the appellant did not attend the hearing. The Second Tribunal would therefore be obliged to comply with s 424A before making a decision.

51    To make out the appellant’s case that the Second Tribunal did not comply with s 424A(1), the Court must find that: (a) there is “information”, (b) which the Second Tribunal considered is the reason, or part of the reason, for affirming the Delegate’s decision, (c) the need to provide the information to the appellant was not carved out relevantly under subs (3)(ba) of s 424A, and (d) the particulars were not provided to the appellant by the Second Tribunal (which is not contested).

52    As acknowledged by the Federal Magistrate, the characterisation of the sentence in [46] of the Tribunal’s decision record which is set out in bold at [33] above (which I will call the bolded words) presents some difficulties. For ease of reference, the bolded words were:

The Tribunal would have wished to discuss with the applicant her apparent limited knowledge of some important aspects of Christianity when interviewed by the delegate and the differently constituted Tribunal.

53    If the appellant’s oral evidence to the Delegate about “some important aspects of Christianity” can be characterised as “information”, then subs (3)(ba) of s 424A does not carve that evidence out from the concept of “information” in s 424A(1) even though the evidence was given as part of the process leading to the decision under review because it is “such information that was provided orally by the applicant to the Department”.

54    In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9], the High Court (French CJ and Keifel J, Heydon and Crennan JJ agreeing) affirmed the approach which the High Court had taken in SZBYR (footnotes omitted):

… the existence of “inconsistencies” and “contradictions” in an applicant’s testimony and written submissions to the Tribunal is not “information” of the kind to which s 424A is directed. As was explained by the plurality in SZBYR v Minister for Immigration and Citizenship, the term “information” in s 424A does not extend to the Tribunal’s “subjective appraisals, thought processes or determinations”. Their Honours said:

[18] … However broadly “information” be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. That is not to say that the tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. Indeed it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond. But an invitation to comment on perceived inconsistencies and contradictions is not an invitation under s 424A. …

55    In VAF, Finn and Stone JJ said:

[23]     Section 424A(1)(a) has two presently relevant requirements. First the tribunal must possess “information”. Second, the tribunal must consider that that information “would be the reason, or part of the reason” for affirming the decision under review.

[24]     As to the first of these, there is now a considerable body of case law concerned with the compass of the term “information” in its s 424A(1) setting. The following propositions emerge from it:

(i)    the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 429–30 [104] ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; BC200301782;

(ii)    the word “information” in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 218 [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at 217–18 [19]–[22]; and

(iii)    the word does not encompass the tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282–4 [26]–[29].

…

[26]     The matters seem obviously to have been referred to because of their perceived relevance to the ultimate question before the tribunal, hence the significance it attributed to the appellant’s “behaviour”. In our view, the knowledge of that behaviour which the tribunal derived from what had been provided to it, or done (in the case of the visa application) by, the appellant was properly characterised as information. It was knowledge acquired about circumstances having a particular factual character (that is they were circumstances involving inaction on the appellant’s part).

[27]    In Paul’s case Allsop J observed (Heerey J agreeing) that (at FCR 428 [95]; ALD 317):

… I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural Affairs …that the information of which particulars must be provided is information or knowledge that has come to or been gained by the tribunal and is not the subjective appraisal or thought process of the tribunal … However, the distinction can become very fine. If the subjective thought processes of the tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of s 424A(1)(b)) of information (for s 424A(1)(a)), requiring the tribunal to give particulars of that information and to explain its relevance.

56    The evidence about the extent of the appellant’s knowledge of the Bible and Shouter practices from which the Second Tribunal could form a view of the appellant’s claim that she is a Christian is derived from oral evidence which the appellant gave in response to questions by the Delegate and the First Tribunal. The Second Tribunal acknowledges (at [19] of its decision record) that it had regard to the material referred to in the Delegate’s decision record. The Second Tribunal’s decision record sets out at [26] the appellant’s evidence derived from the CD Rom of the appellant’s interview with the Delegate. The statement which the appellant gave to the Department in support of her visa application did not address her knowledge of the Bible and mentioned only that she had been baptised in February 2008, her attendance at some “family gatherings” in China (referred to as Shouter activities) and the fact that she has attended a particular church in Sydney. The statement which the appellant gave to the First Tribunal referred to at [21] contains limited information about her exposure to religious practice in China and her reasons for limited attendance at church in Australia; it does not address whether she reads the Bible or her knowledge of the Bible and Shouter practices.

57    In her notice of appeal, the appellant makes no claim that the Second Tribunal owed her an obligation under s 424A in relation to oral or written evidence she provided to the First Tribunal, presumably because of subs (3)(b). I would respectfully agree with the reasoning of Besanko J in SXSB v Minister for Immigration and Citizenship [2007] FCA 319 at [24] which would support this interpretation of s 424A(3)(b), and which is reinforced by the 2007 Amending Act.

58    Subs (3)(ba) of s 424A demonstrates that Parliament was alive to the possibility that “information” may be obtained by the Tribunal through oral evidence to the Delegate. Subs (3)(ba) was one of the amendments to the Migration Act enacted by the 2007 Amending Act. Section 424AA provides an avenue for such information to be put to applicants for protection visas conveniently and with a minimum of procedural difficulty when the applicant appears for a scheduled hearing. However, if that does not occur, and the “information” has the necessary character of being information which is a reason or part of a reason to affirm the Delegate’s decision, written notice of the information and its relevance must be given to the appellant under s 424A(1).

59     That the appellant had limited knowledge of some important aspects of Christianity is a conclusion drawn by the Second Tribunal, an “appraisal” by the Tribunal. The language in [46] of the Second Tribunal’s decision record, and in particular the bolded words, indicate insufficiency of information – a gap or lack of specificity in evidence – rather than that the oral evidence given by the appellant was the reason or part of the reason for the Second Tribunal affirming the Delegate’s decision. The appellant’s answers to the Delegate’s questions can be characterised as information, but the Federal Magistrate did not err in finding, at [34] of SZRRN, that the bolded words were not “a statement by the Tribunal that identified particular information that the Tribunal relied upon (or was disposed at any stage of the review to rely upon) to affirm the delegate’s decision.” Further, I consider that the Second Tribunal’s comments at [46] that:

The Tribunal invited the applicant to appear before it in order to explore in further detail her claims regarding her experiences in China. … Although considered by the previous Tribunal and the delegate, the Tribunal would also have wished to explore the issue of the delay in the lodgement of the application with the applicant during the hearing.

do not give rise to any issue of non-compliance with s 424A(1) and I agree with the reasons given by the Federal Magistrate at [44]-[49] of SZRRN.

60    Although the reasons for a Tribunal to affirm a delegate’s decision are often complex and difficult to unbundle the “Findings and Reasons” of the Second Tribunal are remarkably spare. The only paragraphs of relevance are [46] and [47] which are set out at [33] and [34] above. In this case I consider that a fair reading of the Second Tribunal’s reasons for affirming the Delegate’s decision is that stated: insufficient evidence that the appellant is a Christian or that she suffered harm in China for reasons of her religion or that there is a real chance that she would be persecuted for a Convention reason if she returned to China. All of the Second Tribunal’s statements referenced in [59] above convey no more than might be inferred by the appellant from the invitation letter issued by the Tribunal for the hearing on 26 June 2012 that the “Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone”.

61    For completeness, the Federal Magistrate was plainly right to conclude that, in so far as the Tribunal indicated a wish to discuss the appellant’s pregnancy and whether she may have specific claims related to the impact her child may have on the appellant’s return to China, this information could not be characterised as a reason, or part of a reason, to affirm the decision under review. Indeed, it might be inferred that it is a request for information which might assist the appellant’s application, rather than a reason to affirm the Delegate’s decision.

Conclusion

62    The appeal should be dismissed with costs.

Associate:

Dated:    17 February 2014