ACR15 v Minister for Immigration - [2015] FCCA 2992

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACR15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2992

Catchwords:
MIGRATION – Protection visa – whether Tribunal made findings without basis – whether Tribunal failed to consider the applicant’s claims on a cumulative basis – whether the Tribunal failed to deal with the applicant’s individual circumstances – jurisdictional error – writs issued.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Migration Act 1958 (Cth), ss.36(2)(aa), 422B, 425

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., [2013] SCC 34, [2013] 2 S.C.R. 458
HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596
Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547
Minister for Immigration & Border Protection v WZARH [2015] HCA 40
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133
Nzolameso v Westminster City Council [2015] UKSC 22
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63, (2006) 228 CLR 152
SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
SZSSJ v Minister for Immigration & Border Protection [2015] FCAFC 125

Applicant:

ACR15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 79 of 2015

Judgment of:

Judge Smith

Hearing date:

3 November 2015

Date of Last Submission:

3 November 2015

Delivered at:

Perth and by video-link to Darwin

Delivered on:

6 November 2015

REPRESENTATION

The Applicant appeared in person in Darwin by video-link

Counsel for the First Respondent:

Mr R.J.S. French

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

The name of the second respondent be amended to Administrative Appeals Tribunal.
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 4 February 2015.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 13 October 2014 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 79 of 2015

ACR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia in October 1996 on a one month tourist visa. He has overstayed that visa. It is unnecessary to recount much of his long history in Australia other than that on 26 January 2014, not for the first time, he applied for a protection visa. A delegate of the Minister refused to grant that visa and the Refugee Review Tribunal[1] affirmed that decision. The applicant now seeks judicial review of the Tribunal’s decision.
[1] Now the Administrative Appeals Tribunal.
In order to succeed, the Court must be satisfied that the Tribunal’s decision was affected by jurisdictional error. For the reasons that follow, I have concluded that the Tribunal did not complete its statutory obligation to review the delegate’s decision. That failure to fulfil a statutory duty amounted to a jurisdictional error and the Tribunal will be ordered to complete its review in accordance with law.
Before turning to my reasons in this matter it is important to record one aspect of the Minister’s conduct relating to these proceedings.
This matter was initially listed for hearing on 26 October 2015. At the time of the listing in June 2015, the applicant was in immigration detention in Perth. Had he stayed there he would have been able to have an interpreter next to him during the hearing with the likely result of more fluid communication with the Court. As it turned out, he was not in Perth on 26 October 2015. He had been moved by the Department of Immigration to Darwin without any notice to the Court. As a result, the applicant did not attend on that day. Quite sensibly, the Minister’s legal representative did not seek an order under r.13.03C of the Federal Circuit Court Rules 2001 (Cth) and the hearing was adjourned to enable the applicant to appear. At the rescheduled hearing on 3 November 2015 the applicant appeared unrepresented by video-link from Darwin. There was an interpreter in the courtroom in Perth because there is no accredited interpreter in the Mandarin language in Darwin.
The actions of the Department in moving the applicant without notice to the Court border on contempt. Further, the Minister, as a model litigant owes a duty to ensure that matters before the Court are, so far as reasonably practicable, dealt with as efficiently and expeditiously as possible. Moving an applicant interstate without notice and in a way that means that he or she cannot attend Court or participate in proceedings is in clear breach of that duty. Moving him or her to a place where there is no accredited interpreter only exacerbates that breach.
Such conduct requires a full and frank explanation. None has been given. It is in the interests of the administration of justice that this should never occur again.

The applicant’s claims

The applicant’s first protection visa application in 1997 was based on the following claims:
a)he attended the 1989 student protests in Beijing with some friends;
b)after the protests, some of the applicant’s friends were arrested and reported his involvement in the protests;
c)when he learned of this, the applicant went into hiding in 1989 and left for Australia in 1996; and
d)he cannot return to China as he has been placed on a black list in China that identifies him as a dissident.
In his second protection visa application, lodged on 26 January 2014, the applicant claimed that he had fled China because of political punishment and that he will be arrested by the Chinese authorities if he returns to China for betraying his country.
The applicant was in immigration detention before 31 January 2014 and, as such, he was amongst those whose personal details were published on the website maintained by the Department of Immigration (the “data breach”): see SZSSJ v Minister for Immigration & Border Protection [2015] FCAFC 125 for further details concerning the data breach.
On 13 October 2014 a delegate of the Minister decided to refuse to grant the applicant a protection visa. As well as dealing with the claims actually made by the applicant, the delegate considered the potential impact on the applicant of the data breach. In that respect, the delegate wrote:
The department is aware that a report released on the department’s website that unintentionally enabled potential access to some personal information about people who were in immigration detention on 31 January 2014. The information that was possible to access was the applicant’s name, date of birth, nationality, gender, details about his detention (such as when, where and why (being unlawful). Although the applicant may be put under further scrutiny by the PRC authorities if his PV claims were known, DFAT reports there is only “a small likelihood of Chinese authorities learning of an individuals’ [sic] PV application. There was no information regarding the applicant’s PV claims or contact information. As the information that was able to be accessed only identifies the applicant as someone held in immigration detention, it does not raise the applicant’s profile to make him of interest to the PRC authorities.
The applicant applied to the Tribunal for review of that decision. On 13 January 2015 he attended a hearing conducted by the Tribunal by way of video-link. At the hearing the applicant told the Tribunal that he had participated in the demonstrations, chanting slogans, and that the police arrested several of his friends who then informed on him.
On 4 February 2015 the Tribunal made a decision to affirm the delegate’s decision.

Tribunal’s decision

As the applicant had already applied unsuccessfully for a protection visa on the basis of a claim to be a refugee, the Tribunal considered his claims as being addressed solely to the complementary protection criterion in sub-s.36(2)(aa) of the Migration Act 1958 (Cth). That approach was dictated by the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 and the applicant raised no issue about this approach in these proceedings.
In its reasons the Tribunal dealt first with the applicant’s claims relating to his involvement in the 1989 demonstrations. It found that the applicant did not have a profile that would bring him to the adverse attention of the Chinese authorities. It accepted that he had been involved in those demonstrations but that his participation was limited to chanting slogans in the evening. It concluded that he was a low level participant in the pro-democracy movement for a short period and was not a “key player”. It also found that he had not participated in any pro-democracy events or protests against the Chinese Government or Communist party or developed any profile as a political activist while in Australia.
The Tribunal did not accept the applicant’s evidence that the Chinese authorities were interested in him because his friends were arrested during the 1989 demonstrations because he could only give very little detail about those arrests and there was some inconsistency in his evidence. Based on the applicant’s evidence, the Tribunal was also not satisfied that his friends had in fact been arrested or that they informed on the applicant or that he was of any adverse interest to the Chinese authorities.
The Tribunal did not accept that if the applicant was on any blacklist that he would have been able to obtain a valid passport, an exit permit and depart China legally, as he had been able to do in coming to Australia.
The Tribunal found that the applicant had not participated in any pro-democracy events since 1989, would not participate in any pro-democracy events in the future and would not be harmed by the Chinese authorities because he had participated in the 1989 protests.
The Tribunal then turned to consider the impact of the data breach and the fact that the applicant would return to China as a failed asylum seeker.
The Tribunal’s reasons in this respect require close analysis in due course. For present purposes it is sufficient to note that the Tribunal made its findings on the basis that none of the applicant’s protection visa application information was released as part of the data breach but that the authorities might assume that he had made some claims for asylum. The Tribunal found on those assumptions that the applicant would not face a real risk of harm on return to China for being a failed asylum seeker. The Tribunal did not accept that the applicant’s lodging of a protection visa application or being unlawful in Australia did, of itself, give rise to a real risk that the applicant faced significant harm on return to China because he was a failed asylum seeker or was unlawful in Australia.
For those reasons the Tribunal found that the applicant did not satisfy the criterion for a protection visa in sub-s.36(2)(aa) of the Act and so affirmed the decision of the delegate.

Consideration

Grounds raised in application

There are three grounds in the application. None addresses the particular circumstances of this case and none has any merit. I do not know who drafted the grounds. It was not the applicant. Whoever it is has given no assistance to the applicant or to any of the other applicants who rely on these grounds. The use of formulaic grounds such as these distracts attention from any real issues that might arise in the proceedings. It is difficult enough for the Court to focus on the real task of judicial review without having to contend with boilerplate applications such as this one that pass as grounds of review. Thankfully, at least, there are only three grounds.
The first is that the Minister and the Tribunal were both biased and the applicant was deprived of the “benefits of doubt”. This Court has no jurisdiction to review the decision by the Minister (or, rather, his delegate) and there is no evidence to support a claim of bias. There is no “benefits of doubt” owed to the applicant and so, even if he was deprived of them, there was no error involved.
The second ground is that the Minister and the Tribunal denied the applicant procedural fairness by failing to provide adequate reasons for finding of facts. While, in some respects, the reasoning of the Tribunal was inadequate, that does not mean that there was a denial of procedural fairness. The applicant had the opportunity to give evidence and to present arguments about the issues relating to the decision on review. That opportunity was the extent of the obligation of the Tribunal to afford procedural fairness in the circumstances of this case: ss.422B and 425 of the Act. Further, procedural fairness is concerned with procedures rather than outcome: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63, (2006) 228 CLR 152 at 160 [25]; Minister for Immigration & Border Protection v WZARH [2015] HCA 40 at [55] (Gageler and Gordon JJ). Clearly, the written statement in which the Tribunal’s findings of fact are set out is prepared once a decision is made. It is intended to explain the outcome rather than to form part of the procedure of the review process. The ground is, for those reasons, misconceived.
The third ground is that the Minister and the Tribunal made an offensive finding based on no evidence. There is no explanation of what the particular finding in question is or why it is offensive. For that reason alone I would reject the ground.

Further issues

Although the applicant’s grounds must be rejected, there are two issues that arise from the Tribunal’s reasons which, because he was unrepresented, ought to be dealt with. The two issues concern Tribunal’s reasons in respect of the data breach and failed asylum seeker claims. The first is the following finding:
[48]… As noted in the delegate’s decision there was no information released regarding [the applicant’s] protection claims, and the Tribunal accepts this.
On its face, this finding by the Tribunal was made with no other basis than the fact that the delegate had made the same finding. If that is in fact the case, it is inconsistent with its obligation to “review” the delegate’s decision. In order to “review” a decision, the Tribunal must consider “for itself” the material before it and make its own findings based on that material: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547 at [32]; MZZZW v Minister for Immigration & Border Protection [2015] FCAFC 133 at [58]. Simply adopting a finding made by the delegate is not a product of a “review”, it is copying.
The Minister submitted that this is not what occurred. Rather, he argued that the Tribunal made the same finding based on the same material. He relies on the passage from the delegate’s decision that is set out at [9] above. The problem with that submission is that the delegate does not reveal the source of any of the information that was relied on for those findings. The passage sets out nothing more than a number of conclusions. It may be that there was evidence before the delegate that supported those findings but that is not established from this passage.
The Tribunal is obliged to set out in a statement all of its findings on material questions of fact as well as the material on which those findings were based: s.430(1). Here, it set out its finding that there was no information released regarding the applicant’s protection claims. That was clearly material to its decision. However, the only matter it referred to as supporting this finding was the fact that the delegate had made the finding. Had there been some indication in the delegate’s decision as to the basis for his finding, I would readily have accepted the Minister’s submission that the finding was open and, although the Tribunal’s reasons could have been better expressed, that there was no error apparent in them. However, because there was no such indication, I do not accept it.
In my view, the Tribunal abdicated its duty to review in this respect and so constructively failed to exercise its jurisdiction. I note that it is essential to this outcome that the particular finding formed the basis for the balance of the Tribunal’s reasons. Had it been more peripheral to those reasons, the resolution of the issue would have been more difficult. In each case it is necessary to have close regard to the particular facts and findings made.
The second aspect of the Tribunal’s reasons that requires close attention concerns the way in which the Tribunal purported to deal with how the applicant might be treated on return to China.
The question of whether a person satisfies the criteria for a protection visa is, like what I have said about the determination of whether a decision is affected by jurisdictional error, individual and fact specific. In Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473, Gummow and Hayne JJ said,[2] in the context of the criterion importing the Refugee Convention[3] that the question:
… requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact‑specific inquiry which must be made.
See also HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596 at [94] per Lord Walker.
[2] Citing R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840 at 841 [2] per Lord Bingham of Cornhill, 843 [7] per Lord Steyn, 854 [42] per Lord Rodger of Earlsferry; [2003] 2 All ER 1097 at 1099, 1101, 1112
[3] Convention on the Status of Refugees (1951) as amended by the Protocol on the Status of Refugees (1967)
This reasoning applies with equal force to the criterion in sub-s.36(2)(aa) of the Act.
Thus, here the Tribunal was required to determine what might happen to this applicant on the basis of all the facts about him that it had accepted. In particular, it was required to assess how he would be treated in light of the fact that he had not only applied for asylum in Australia but also that he had taken part in pro-democracy demonstrations in China in 1989. Another way of saying the same thing is that the Tribunal had to deal with the applicant’s claims on a cumulative basis.
In its conclusion, the Tribunal said:
[61]The Tribunal has considered the applicant’s circumstances individually and cumulatively, and it finds …
If what the Tribunal said in that passage was in fact correct, then it took the approach required by the Act. However, it is permissible to have regard to the actual findings and reasons given by the Tribunal up to the point of this conclusory statement. That is not to take an overly technical or nit-picking approach to the Tribunal’s reasons or to engage in a line-by-line hunt for treasure: cf. Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272, Nzolameso v Westminster City Council [2015] UKSC 22 at [32] per Lady Hale (with whom Lord Clarke, Lord Reed, Lord Hughes and Lord Toulson agreed); Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., [2013] SCC 34, [2013] 2 S.C.R. 458, at para. 54 (LeBel, Fish, Abella, Cromwell, Karakatsanis and Wagner JJ). Rather, it is in order to understand the whole of the reasons.

The Tribunal accepted information from the Department of Foreign Affairs and Trade (DFAT) in a 2006 advice to the Department of Immigration that it was “not possible to comment definitively on how Chinese authorities would treat failed asylum seekers” but noted that DFAT did not suggest that Chinese authorities impute all failed asylum seekers with political beliefs and subject them to harm. Rather, it noted, DFAT advised that:
… it would be very likely that Chinese authorities would interview them and might keep them under surveillance and detain them for a short period. Any further action would depend on the circumstances of the individual cases.
This advice highlighted the importance of paying close attention to the applicant’s particular individual circumstances.
The Tribunal then considered (with apparent acceptance) an advice from DFAT in 2007 updating the 2006 advice in respect of particular groups of asylum seeker (Falun Gong, underground church/political dissident). In the report DFAT restated its opinion that no definitive response could be given on the treatment of returnees, but noted that the authorities were likely to treat high-profile asylum seekers more severely (longer-term surveillance, administrative detention) than low-profile members. This did not suggest that the authorities would not question, keep under surveillance or detain those lower profile asylum seekers.
The Tribunal then considered a March 2007 report from DFAT to the effect that the Chinese authorities viewed asylum seeking as common place. However, once again, this report did not suggest that low-profile asylum seekers would not be questioned, kept under surveillance and detained as reported earlier.
These last two reports were restated by DFAT in a report given in 2009.
After dealing with these reports, the Tribunal rejected the applicant’s suggestion that the Chinese authorities would be aware of the contents of the applicant’s protection visa application. This was presumably on the basis of its finding at [48] that no such information was released. However, having found that, it did accept that the authorities might assume that the applicant had lodged an unsuccessful protection visa application. It then turned to consider what might occur to the applicant in light of that and the reports from DFAT on that topic. It said:
[55]… Having regard to the country information referred to, the Tribunal accepts that the applicant may be questioned and interviewed on his return to his country as a failed asylum seeker from Australia. However, the Tribunal does not accept that he will be detained solely on the basis he was a failed asylum seeker.
(Emphasis added)
The Tribunal then explained that this was because the applicant did not have a profile as a political activist/dissident and was not known for publicly criticising the Chinese regime and did not have any adverse profile with the authorities. It then continued:
… Therefore the Tribunal gives weight to the DFAT advice of 2007 and does not accept that he will be of any interest to the Chinese authorities and detained or kept under surveillance simply because he is a failed asylum seeker.
(Emphasis added)
It may be noted that this finding was in fact inconsistent with the DFAT report. DFAT had reported in 2006, and restated, that it was “very likely” that the authorities would interview all asylum seekers returning and “might keep them under surveillance and detain them”. None of the later reports changed that advice. Thus, this finding had no logical basis in the material before the Tribunal. That might, of itself, establish jurisdictional error in the Tribunal’s reasons; however, in my view, there was a more fundamental mistake made by the Tribunal. The mistake is revealed by its use of the words “solely” and “simply”.
The applicant was not “solely” or “simply” a failed asylum seeker. He was one who had been involved in pro-democracy demonstrations in 1989. While the Tribunal had purportedly dealt with that fact, it had only done so on the basis that it had not, to date, given him a profile that would bring him to the attention of the authorities: see [45] of the Tribunal’s reasons. The question, however, remained as to whether, having come to the authorities’ attention as a returning asylum seeker, and questioned by the authorities about that, his previous political activities might lead to him being treated differently to an ordinary asylum seeker. Did the Tribunal deal with that question?
At a very high level it might be said that it did deal with the question. For example, it said:
[56]The Tribunal does not accept that the applicant’s lodging of a protection visa application or being unlawful in Australia does not of itself give rise to a real risk that the applicant faces significant harm on return to China because he is a failed asylum seeker or was unlawful in Australia. The Tribunal does not accept that the applicant would be of adverse interest to authorities in China for these or any reasons.
(Emphasis added)
The reference to “any reasons” might be suggested to cover the applicant’s combination of having participated in pro-democracy demonstrations and being a failed asylum seeker. However, I do not accept that that is what the Tribunal meant. That is because, other than making that rather broad statement, it gave no reasons that addressed the combination of circumstances. Rather, I think that the Tribunal still had in mind the two sets of circumstances as individual and separate claims. That conclusion is fortified by the way in which the Tribunal went on to summarise its conclusions:
[58]Based on the evidence provided, the Tribunal is satisfied that the applicant will not be harmed if he returns to China by the Chinese authorities because he is a failed asylum seeker or was unlawful in Australia or as a result of any data breach.
(Emphasis added)
The use of the disjunctive “or” in this paragraph shows that the Tribunal maintained a separate approach to the applicant’s claims.
In light of this analysis, I have concluded that the Tribunal’s statement (at [61]) that it had dealt with all of the claims “individually and cumulatively” was not an accurate statement of its reasoning process. Rather, it failed to deal with the applicant’s individual circumstances that included the fact that he would return to China both as a failed asylum seeker (thereby drawing the attention of the authorities and being subjected to questioning, surveillance and detention) as well as a person with past involvement in anti-government activities.

Conclusion

In failing to deal with the applicant’s individual circumstances, the Tribunal failed to address the question posed by sub-s.36(2)(aa) of the Act and so constructively failed to exercise its jurisdiction. For that reason, there will issue writs of certiorari and mandamus.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date: 6 November 2015