Case: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 102 ALD 226
Outcome: considered
Although no ground of appeal was raised concerning jurisdictional error by the Tribunal for breaching s 91R(3) of the Act , the first respondent has quite properly raised this for the Court's consideration in light of the recent Full Federal Court decision reported as SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 102 ALD 226. The report, involving the proper construction of s 91R(3) , concerns three appeals: one was an application for leave to appeal in respect of which leave was granted. The other two appellants were SZJXO and SZKBK. 26 Section 91R(3) relevantly provides that: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 28 I do not agree. SZHFE did not concern a sur place claim. The Tribunal in that case found that the applicant's conduct in Australia was not an attempt to enhance his protection visa claims but rather was an attempt to achieve permanent residency by another route. Accordingly, s 91R(3) did not require that his conduct be disregarded. There appears to have been very little argument before Jacobson J as to the proper construction of s 91R(3). His Honour did however express his opinion that " s 91R(3) is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution". I do not apprehend his Honour to be saying that the provision is limited in its effect to conduct in support of a sur place claim. Nor is this opinion necessarily inconsistent with the construction of s 91R(3) articulated in SZJGV by the Full Court. 31 Contrary to the first respondent's submission, the court in SZJGV held that s 91R(3) , upon its proper construction, is not limited to sur place claims which depend on conduct deliberately engaged in by an applicant in Australia to attract the adverse attention of the authorities in his or her country of origin and thereby support a claim to be a refugee. It said at [24]: Section 91R(3) was intended to and does require such conduct to be disregarded when assessments are being made. It is not (although it could have been) confined in its terms to conduct which may render a person a refugee sur place. Decision-makers are, subject to the proviso in para (b), required to disregard "any" conduct in Australia by an applicant. The conduct is to be disregarded in determining "whether" an applicant has a well-founded fear of persecution for a convention reason. The conduct may suggest that such a fear is or is not well-founded. In either case it must be disregarded. If the tribunal brings the conduct into account it will contravene s 91R(3). 32 This extended construction was applied by the Full Court in SZJGV at [27] where it found that the Tribunal had had regard to the appellant's conduct in Australia, if only for the limited purpose of assessing the credibility of his claim to have been a Falun Gong practitioner in China and to have suffered persecution for having done so. The Full Court held that by so doing the Tribunal contravened s 91R(3) of the Act . This construction of s 91R(3) , extending beyond refugee sur place claims, is consistent with the approach taken by Driver FM in SZHAY v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 199 FLR 148 at [32] to which the Full Court referred with apparent approval in SZJGV at [10]. 36 The first respondent submits that this finding was based on the Tribunal's earlier finding that the appellant was not a practising Christian and member of an underground church in China and had not suffered persecution for that reason. The first respondent then characterises these findings as considerations of the appellant's motivation and beliefs as evidenced by his conduct in China and not his conduct in Australia. It submits that s 91R(3) does not apply to a person's conscientious beliefs or motivations for conduct; NBKT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [96] and SZJGV at [25] and s 91R(3) should not operate so to oblige the Tribunal to disregard its own ultimate findings as to whether the appellant's conduct in Australia should be disregarded. 38 This mirrors the situation considered by the Full Court in SZJGV in the appeal of SZJXO at [28]. The Court there said: The tribunal did not have regard to the appellant's conduct in Australia for the purpose of deciding whether or not he had practised Falun Gong in China before coming to Australia. It did, however, have regard to his conduct in Australia for the purpose of determining that there was no reason to believe that he would be persecuted by reason of his Falun Gong activities should be (sic) return to China. ... The tribunal thus brought into account, to the appellant's detriment, his conduct in Australia when determining whether he had a well-founded fear of persecution should he return to China. The tribunal thereby contravened s 91R(3). In doing so it made a jurisdictional error. (Emphasis added) 39 The evidence of the appellant as to his conduct in Australia is correctly characterised, in my opinion, as intended to have been corroborative of his evidence that he was a genuinely committed Christian in China and to have been persecuted there for that reason. No claim was made by him that he feared persecution because of his involvement as a Christian in Australia. Nonetheless the Tribunal made a finding to that effect as set out at para [35] above. 40 Conduct under either head, where the proviso under s 91R(3)(b) has application, as here, must be disregarded. The Tribunal committed jurisdictional error by contravening s 91R(3) when it relied upon findings as to the appellant's alleged practice of Christianity in Australia as a basis for finding that he would not practice Christianity in China upon his return and that accordingly there was no real chance that he would be persecuted for a Convention reason based in his religious belief then, or in the reasonably foreseeable future. 41 The appellant's conduct was not addressed as evidence to support a sur place claim but only as corroborative evidence of his claims to have practised Christianity in China. Nonetheless, as SZJGV has made clear, s 91R(3) is properly engaged even in those circumstances. 42 Counsel for the Minister in SZJGV did not submit that the Tribunal's decisions could, despite the breach of s 91R(3) , be supported independently by reason of other findings. 43 Counsel for the first respondent in this case submits to the contrary. 44 In this case, unlike SZJXO, the finding that the appellant was not a committed Christian in China depended on primary findings to which I have referred which were quite discrete from the findings concerning his attendance at church services in Australia. The finding as to his alleged practice of Christianity in China did not depend upon any conduct in Australia. The relevant findings accordingly stand apart. In SZJXO the finding that there was no real chance of the appellant being persecuted by reason of her religious beliefs on her return to China was derived from evidence which was intermixed including her conduct in Australia: [28]. The position was the same in the appeal of SZKBK at [30].