SZLTC and Ors. v. Minister for Immigration and Anor.

The key issues and questions of law at first instance were based on the following three grounds of the show cause application filed on 11 December 2007:
1. The Tribunal failed to act judicially and thereby failed to afford the Applicant procedural fairness in rejecting his claim to fear persecution upon refoulment by reason of information about his Falun Gong practices while in Australia being discovered by Chinese authorities.

Particulars
(a) It was not open to the Tribunal to reject the Applicant’s claimed fear of persecution without cogent material supporting a conclusion that the applicant’s
commitment to Falun Gong was not genuine.
(b) The Tribunal rejected the Applicant’s claim of fear of persecution being well-founded in circumstances where it accepted that “the full fact [about PS13 spies
in Australia are] are yet to be established.

2. The Tribunal constructively failed to exercise its jurisdiction in accordance with the Migration Act 1958 by not affording the Applicant procedural fairness and putting him on notice of critical information from Master Li’s book and “about cultivating the heart/mind nature” in circumstance where it relied on such information to discredit his claim to be a Falun Gong practitioner and, correspondingly, his claim to fear persecution if returned to China.

Particulars
(a) While acknowledging the Applicant is a recent adherent to Falun Gong the Tribunal nevertheless discredited the Applicant’s claim base[d] on a
disproportional interrogation of Falun Gong exercises.
(b) The Tribunal found that the Applicant displayed no evidence of the knowledge and understanding of the name of the exercise appeared limited.
(c) The Tribunal found the applicant “was unable to answer how many parts or movements there were to the first exercise”.
(d) The Tribunal was satisfied the Applicant would only face a “remote chance of persecution if he returned to China” base[d] on its assessment that the applicant
has not “developed a genuine commitment to the practice of Falun Gong in China, Australia or Japan”.

3. The Tribunal constructively failed to exercise its jurisdiction and to afford the Applicant natural justice in circumstances where the Tribunal did not consider all the integers of the Applicant’s claim.

Particulars
(a) The Applicant claimed “he suffered restrictions in China because of his involvement [in] Falun Gong activities”. The applicant was attacked and threatened
in japan in relation to his Falun Gong activities.
(b) The Tribunal member failed to deal with the Applicant’s above claim in circumstances where my claims relat[ed] to Falun Gong.

Other relevant paragraphs include the following references:

At [7]:
"As to the grounds in the show cause application, I accept the Minister's submission that there is no substance to the first ground and the third ground. I also accept that there is no substance to the second ground to the extent that it is based upon an asserted breach of s.424A of the Migration Act. I accept in that regard and incorporate in this judgment, with minor amendments, paragraph 6 of the Minister's written submissions:

The Application contains three grounds. The first claims that it was not open for the Tribunal to find that the Applicant was not a genuine [Falun Gong] practitioner, but this conclusion was open for the reasons the Tribunal gives. This ground seeks merits review. The ground purports to quote from the Tribunal’s decision, but the quote does not appear in the Tribunal’s reasons. The second ground claims that the Tribunal was obliged to inform the Applicant about information concerning [Falun Gong] which it discussed with the Applicant at the hearing. However there is no such obligation. Common law procedural fairness does not apply given s 422B, and s 424A does not require such information to be given to the Applicant, both because it is not specifically about him (s 424A(3)(a)) and because it does not in its terms constitute a rejection, denial or undermining of his claims to protection within SZBYR v MIAC (2007) 235 ALR 609 (HCA) at [17]. The Tribunal was entitled to explore the Applicant’s knowledge of [Falun Gong] at the hearing: SBCC v MIMA [2006] FCAFC 129 at [45]; WALT v MIMA [2007] FCAFC 2 at [30]. Its reasoning concerning that exploration is a thought process, not “information”. The final ground claims that the Tribunal failed to address the Applicant’s claims of past harm because of his [Falun Gong] practice in Japan, but the Tribunal did address this claim at CB 128.8, albeit by rejecting it."

At [12]:
"The applicant's second ground of review draws attention to the information the Tribunal derived from Master Li's book and asserts that he should have been put on notice of that information and the significance of it. As I have already noted, there is no substance to that ground to the extent that it is based on s.424A because of the
exclusionary provision in s.424A(3)(a). In addition, to the extent that the adverse credibility finding was based on the applicant's own evidence, there was no obligation of disclosure because of s.424A(3)(b)."

At [13]:
"Arguably, an obligation of disclosure might arise in two other ways. First, it might arise if the Tribunal came under an obligation of disclosure in accordance with the principles enunciated by the High Court in SZBEL v Minister for Immigration [2006] 231 ALR 592. In my view, no such obligation arose in this case because it is clear from the decision of the delegate, in particular reproduced at CB 37, that the applicant's claim of being a genuine Falun Gong practitioner was subject to question."

At [15]:
"…Section 424AA on its face appears to confer a discretion to disclose rather than to impose an obligation of disclosure. That appears from the use of the word "may" in s.424AA(a). It does not follow, however, that an obligation under s.424AA cannot arise, for example, if an obligation existed to ensure a fair hearing for the purposes of s.425 based upon SZBEL. As I have already noted, however, no such obligation arises in this case."

At [16]:
"It appears from the terms of s.424AA that if the Tribunal elects to embark upon a course of oral disclosure at a hearing, there are resultant obligations as set out in s.424AA(b)(i), (ii), (iii) and (iv). It also appears that if the Tribunal embarks upon a course of disclosure under s.424AA it does not enjoy the protections in s.424A(3). It would have been a simple matter for the Parliament to reproduce the exclusions in s.424A(3) in s.424AA. The fact that Parliament has chosen not to reproduce those exclusions leads me to think that they do not apply in relation to disclosure under s.424AA."

At [17]:
"It appears to be necessary in cases like the present to consider the Tribunal's description in its reasons of what occurred at the hearing and any other information that may be available, including a transcript of the Tribunal hearing, in order to determine whether the Tribunal has embarked upon a disclosure for the purposes of s.424AA, so as to analyse any issue of compliance with its obligations. There is nothing on the face of the Tribunal reasons that indicates the Tribunal was purporting to demonstrate compliance with the section. The transcript of the first Tribunal hearing on pages 11 to 14 sets out a discussion between the presiding member and the applicant in which the presiding member was seeking to test the applicant's knowledge of Falun Gong theory and practice, including the book by Master Li. It does not appear to me, however, from that discussion that the presiding member was consciously seeking to disclose information for the purposes of s.424AA. Further, it does not appear to me that if the Tribunal had embarked upon such a course of disclosure it had met its obligations under s.424AA(b)."

Additionally, at [18], Driver FM held that s 424AA had not been engaged as the information relied upon by the Tribunal was not "information" for the purposes of s 424AA(a):
"It is unnecessary to resolve the potentially difficult question of whether the Tribunal had embarked upon a course of oral disclosure because I am satisfied that the information relied upon by the Tribunal was not “information” for the purposes of s.424AA(a). It is significant that Parliament has chosen to refer to information for the purposes of s.424AA(a) in the same terms as appears in s.424A(1)(a). Because Parliament has expressed itself in the same terms in both sections, the interpretation given to the term "information" for the purposes of s.424A(1)(a) is relevant."

At [19]:
"Perhaps most importantly in SZBYR v Minister for Immigration [2007] HCA 26 at [17] the High Court stated:

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."

At [20]: 
"The High Court's reasoning is, in my view, directly relevant in this case. Master Li's book did not of itself undermine the applicant's claims. The applicants were not making any claims inconsistent with what was contained in Master Li's book. The contents of the book were therefore not information that would be a reason or part of the
reason for affirming the decision under review. The Tribunal made an adverse credibility finding because the first applicant was not able to demonstrate an understanding of what was in the book. Thus, what was critical was not the contents of the book, but the applicant's lack of understanding of it."

At [21]:
"It is well-established that gaps, lack of detail or specificity of evidence or conclusions reached in weighing evidence by reference to those gaps is not “information” for the purposes of s.424A(1)(a)1. Neither, in my view, is it “information” for the purposes of s.424AA(a) of the Migration Act. I find therefore that the second ground, to the extent that it is based upon an asserted breach of an obligation arising from s.424AA, fails. As I have already noted, I otherwise reject that ground and the remaining grounds in the application."

At [22]: 
"I have also considered whether any issue arises from the Tribunal decision in relation to s.91R(3) of the Migration Act. The Tribunal considered information provided by the first applicant about his conduct in Australia. It is apparent from what the Tribunal says at CB 127 and 128 that the Tribunal rejected that evidence as establishing a genuine commitment by the first applicant to Falun Gong. The Tribunal ultimately disregarded the first applicant's conduct in Australia because it was not satisfied that the conduct was engaged in for a reason other than to enhance the applicant's protection visa claims. The Tribunal was entitled to take into account information relating to that conduct for the purpose of determining whether it was required to disregard that conduct. In my view, the Tribunal's analysis of the information for that purpose was unexceptionable."

At [23]: 
"I conclude that there is no jurisdictional error in the decision of the Tribunal. The Tribunal decision is therefore a privative clause decision and the application must be dismissed."