AIG18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 169
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AIG18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 169
File number: MLG 177 of 2018 Judgment of: JUDGE FORBES Date of judgment: 18 February 2025 Catchwords: MIGRATION - protection visa – judicial review of decision of Immigration Assessment Authority – whether applicant denied procedural fairness – where files relating to previous visa applications not before Authority – whether applicants claims for protection properly considered – consideration of fast track review process – no error found Legislation: Migration Act 1958 (Cth) s 473CB, 473DB, 473DC, 473DE, 473GB Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
BIS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 730
CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367
CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074
EVS17 v Minister for Immigration (2019) 268 FCR 299
High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Republic of Nauru v WET040 (No 2) (2018) 93 ALJR 102
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of hearing: 10 February 2025 Place: Melbourne Applicant: In person Solicitor for the Respondents: Mr Plitsch; Australian Government Solicitor ORDERS
MLG 177 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AIG18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Applicant’s application for judicial review filed 23 January 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 10 January 2018 the Immigration Assessment Authority (the Authority) affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. By an application dated 16 January 2018 the applicant seeks judicial review of the Authority’s decision.
The application for judicial review identifies eight grounds of error. Each of those grounds and my findings in relation to each are set out later in these reasons.
Suffice to say, at the judicial review hearing before me on 10 February 2025, the self-represented applicant (who was assisted by a Mandarin interpreter) did not make any substantive submissions in support of the grounds set out in his application. He was given every opportunity to do so. It was left to the Minister’s representative to speculate as to how the applicant would have advanced his grounds and to address each of them accordingly.
Having considered the written and oral submissions advanced on behalf of the Minister, I am satisfied that the decision of the Authority was not affected by judicial error. Accordingly, the application will be dismissed.
BACKGROUND
The applicant is a citizen of the People’s Republic of China. On 12 September 2017 the applicant lodged an application for a protection visa (subclass 866) wherein he expressed claims to fear harm for reasons of his religion, his membership of a particular social group, his imputed political opinion and because of the release of his personal information on the website of the Department of Immigration and Border Protection.
On 2 November 2017, a delegate of the Minister (the delegate) refused to grant the visa, finding that the applicant did not have a well-founded fear of persecution and there was not a real risk of significant harm upon his return to China.
The delegate’s decision on 2 November 2017 was the third occasion on which the applicant had been refused a protection visa.
The applicant first applied for a protection visa on 1 August 2011. That application was refused by a delegate on 15 August 2011 and the refusal was subsequently affirmed by the then Refugee Review Tribunal (RRT) on 8 December 2011.
On 6 November 2013, the applicant was permitted to make a second application for a protection visa. Again, that application was refused by a delegate in a decision dated 8 January 2015. The RRT affirmed that delegate’s decision on 9 February 2015.
On 26 July 2017, the applicant was identified as a “fast track applicant” and was therefore permitted to make a third application.
On 12 September 2017, the applicant applied for the visa which is the subject of these review proceedings. The claims for protection advanced in support of this most recent application were:
(a)that the applicant was a practitioner of Falun Gong, a religious practice regarded as illegal in China. The applicant claimed that his involvement with Falun Gong had caused him harm in the past;
(b)that the applicant had borrowed money from loan sharks and members of the Triad, who started hurting and persecuting him when he was unable to repay the debts; and
(c)the applicant’s personal information had been disclosed in a data breach by the Department in 2014. The applicant claimed that his creditors and the Chinese police might have access to this information and cause him harm.
Prior to the refusal of this third visa application, the applicant attended an interview with the delegate on 16 October 2017. As I discussed later in these reasons, at that interview the applicant was asked questions about his previous visa applications and the earlier RRT decisions which affirmed the refusals.
After the delegate’s refusal of the visa application on 2 November 2017, the application was referred to the Authority for review pursuant to Part 7AA of the Migration Act 1958 (Cth). The materials provided by the Department to the Authority for the purposes of the review did not contain the files relating to the applicant’s first or second applications. The referred materials did, however, contain the two RRT decisions from 2011 and 2015 and the delegate’s most recent decision which included observations arising from the delegate’s interview with the applicant in October 2017.
No new information was provided to the Authority prior to its review. Nor did the applicant or any representative on his behalf raise additional claims for protection or file any written submissions. The Authority’s review of the application proceeded on the basis of the material provided by the Department.
For the reasons set out in its decision published on 10 January 2018, the delegate’s decision was affirmed and the application for a protection visa was refused.
Authority’s decision
At paragraphs [11] to [24] of her outline of submissions filed on 28 January 2025, counsel for the Minister summarised the Authority’s reasons. I have carefully read the Authority’s reasons and accept counsel’s summary as comprehensive, fair and properly referenced. I adopt it for the purposes of this judgment.
11.The Authority noted that it had been provided with the review material under s 473CB of the Act, and no new information had been provided: [3]-[4]. It noted the existence of the two non-disclosure certificates, issued under s 473GB of the Act, and in exercising its discretion under sub-s (3), determined: [5]:
11.1.not to have regard to two of the three documents, because they were irrelevant to the review; and
11.2.not to release the information in the third document, as the document did not contain any information in addition to what was already before it, and the information had been put to the applicant in the protection visa interview already.
12.The Authority noted that the applicant had applied for protection three times, and in the first visa application he claimed to fear harm as a Falun Gong practitioner and because of an unpaid debt, and in the second visa application and the current application he claimed in addition to the matters raised in the first visa application that he was part of the data breach in 2014: [9]. While the Authority did not have the first application or the second application before it, it had the Tribunal decisions and the claims that were recorded in the decisions were discussed at length with the applicant at the protection visa interview with the delegate on 16 October 2017. In the absence of any information to the contrary, the Authority considered that the accounts of the applicant’s claims in the Tribunal decisions were reliable; [10]
13.The Authority then considered the applicant’s Falun Gong claim, and noted several inconsistencies in the evidence given by the applicant at his various hearings and interviews with respect to his claim to fear harm on the basis of his Falun Gong practice, including that:
13.1.he claimed to start practicing in 2006 in his first Tribunal hearing, but claimed he started in 2001 in his second Tribunal hearing: [13]. The applicant was unable to provide an explanation for this discrepancy during his interview with the delegate, but confirmed that the 2001 date was correct: [14]. When the delegate put to him that he had claimed in his second Tribunal hearing to start practicing in 2006 because a friend had provided him with the materials after a period of detention in China, the applicant responded that he would only like to talk about the data breach: [15].
13.2.he claimed in his first Tribunal hearing that he practised alone and seldom participated in organised activities, but in his second Tribunal hearing and his written submissions to the delegate in his third application, he claimed to attend a special place after work three days per week and listen to lectures as Falun Gong meetings and groups from 2001: [16]. When asked about this inconsistency by the delegate, the applicant declined to comment: [16]. The Authority found the inconsistencies about the date the applicant commenced Falun Gong and whether he seldom participated in Falun Gong activities or regularly attended Falun Gong lectures, were significant: [17].
13.3.in his submissions to the delegate in his third application and in the hearing before the Tribunal for the second application, he claimed that he had been taken by a police officer on three occasions because of his Falun Gong practice, whereas his evidence to the Tribunal on the first occasion was that he had been detained by police because of debts twice, and Falun Gong the third and final time: [18]. When asked about this inconsistency by the delegate, the applicant declined to comment: [18]. The Authority found that it was not credible that the applicant would not know how many times he had been taken by a police officer in China because of his Falun Gong activities: [19].
14.The Authority found it significant that the applicant was unable to provide much detail at either of the Tribunal hearings about the Falun Gong activities in which he claimed to have been involved since 2001 or 2006. In particular, the Authority noted that the applicant had been unable to name the central Falun Gong book (Zhuan Falun written by Falun Dafa’s founder, Li Hong Zhi) in his previous hearings or before the delegate, and the applicant stated he had not seen this book: [20]. It further found that it was “not credible that, if the applicant was a genuine Falun Gong practitioner and had been involved in Falun Gong from either 2001 or 2006, and had read the Falun Gong books as he claimed at the hearing on 10 November 2011, he would not know the central text setting out the beliefs of Li Hong Zhi for Falun Gong when asked about it in 2011”: [21].
15.The Authority noted the delegate had put to the applicant that it was implausible that he was convicted of incitement to overthrow the state, for possessing and spreading Falun Gong material, yet no action was taken against him from August 2006 until his departure from China in June 2008, and that fraudulent documents can be easily obtained in China. Noting the applicant had told the first Tribunal that the prosecution did not succeed and the significant inconsistencies in the applicant’s evidence otherwise, the Tribunal placed little weight on the document purportedly issued by the People’s Prosecutor of Daoli District: [22].
16.The Authority identified other inconsistencies regarding key matters such as the reasons the applicant gave for why he left China, why he did not depart China earlier if he was being persecuted for his faith and why he was able to obtain a passport, his reasons for not wanting to return to China (he stated in the second Tribunal hearing that it was because he liked Australia), why he did not apply for a protection visa until three years after his arrival in Australia, and after he was detained as an unlawful non- citizen and his evidence that despite attending Falun Gong meetings, he never undertook the five key exercises: [23]. The Authority considered the applicant’s claim that a stroke in mid-2011 made it difficult for him to recall information, but rejected this explanation: [24]. The Authority noted that the applicant had attended two Tribunal hearings in November 2011 and February 2015 (both after the occurrence of the stroke) without any apparent difficulty: [24].
17.The Authority concluded that the applicant was not a Falun Gong practitioner in China or Australia, and was accordingly not satisfied that he had been persecuted in China on the basis of being a Falun Gong practitioner. As such, the Authority was not satisfied that there was a real chance that the applicant would be persecuted for reason of being a Falun Gong practitioner if returned to China: [25].
18.The Authority then considered to the applicant’s claims to fear harm on the basis of his debts in China. In his visa application, the applicant said that he borrowed 500,000 RMB in 2005, which with interest would now be 900,000 RMB: [26]. It noted that the delegate at the protection visa interview on 16 October 2017 raised with the applicant that his evidence at the second Tribunal hearing on 5 February 2015 was that he owed 900,000 RMB in 2005 and that amount was outstanding in 2015 and the second Tribunal referred to the implausibility that the debt could remain exactly the same in 2005 and 2015. The Authority did not find it credible that the loan did not increase between 2005 and 2015 and that the total amount claimed to be outstanding was 900,000 RMB in 2005 and in 2015: [28]. The Authority also did not accept as credible that the applicant would not have made attempts to repay part of the loan: [29].
19.The Authority noted that the applicant stated to the first Tribunal that, after he was sued in China in relation to the debt, the Chinese court mediated the issue, he told them he could pay his debt by selling his vehicles, a written agreement was drafted to document when the debt would be repaid and before the mediated repayment date, he was arrested by a court official. The Authority considered the applicant’s failure to repay the debt by selling his vehicles when he had the opportunity to do so indicated that he did not have any fear concerning a debt: [30]. The Authority considered it unlikely that the applicant did not tell his son of his financial issues if he feared harm and persecution, and because the son was a dependent in the second application: [31]-[32].
20.The applicant had indicated to the delegate that he does not have any family or friends in Australia who are financially successful and he also indicated that since entering Australia, he has not sought to repay any of his debt. However, in his engagement with the compliance officer on 11 July 2017, the applicant indicated that his brother-in-law could financially support him in Australia. The Authority noted that the delegate also referred the applicant to department records which showed that his daughter-in-law put up a $20,000 bond in August 2017 to secure his release from immigration detention. That the applicant had not made attempts to repay the debt to reduce the risk or chance of harm and that family members here in Australia would assist given the personal risk to the applicant was put to the applicant by the delegate as suggesting he did not have a debt: [33].
21.The Authority considered it reasonable to expect that if the applicant’s life was at risk or he was at risk of serious or significant harm, he would have attempted to repay, or at least reduce, the debt in China to reduce the risk or chance of harm to himself. Given his family had offered to financially support him Australia, if he had a fear of harm because of the debt he would have at least approached them about financial assistance: [34]. Similar to the Falun Gong claim, the Authority did not consider that the applicant’s stroke affected his ability to give evidence: [35]. The Authority did not accept that the applicant had or has an outstanding debt in China, nor that he had come to the adverse attention of the Chinese authorities or any creditors or triads. Accordingly, the Authority concluded that there was not a real chance that the applicant would be persecuted on that basis: [35].
22.In relation to the applicant’s claim he was at an increased risk of harm as his personal information could have been accessed by creditors or the Chinese police as a result of the data beach ([37]-[38]), the Authority accepted that the applicant had been subject to the data breach: [39]. However, in addition to having rejected the applicant’s claims about being a Falun Gong practitioner and having a debt, the Authority was not satisfied that the applicant’s information was accessed by others: [41]. Further, even if it was accessed by others, the Authority was not satisfied that the applicant would be adversely affected by access to his personal information: [41]-[42]. The Authority noted that the applicant has been in Australia for over ten years, and that there is no credible evidence that the Chinese authorities had any interest in the applicant when he departed China in 2008, nor would he be of interest on return: [43].
23.The Authority did not accept that the applicant would suffer harm as a result of the data breach if he returns to China: [44]. Even if the Authority accepted that the applicant could be positively identified based on available information briefly released on the website in 2014, and the Chinese authorities were aware that the applicant had sought asylum in Australia, the Authority was not satisfied that the applicant would face a real chance of harm from the Chinese authorities due to being a failed asylum nor that he has a profile that would result in his being of interest to the authorities on his return as a result of the data breach: [45]
24.The Authority was not satisfied, having regard to all of the evidence and the applicant’s claims, that the applicant had a well-founded fear of persecution: [46]-[47]. In light of the factual findings in relation to the refugee criterion, the Authority was similarly not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm: [52].
APPLICATION FOR JUDICIAL REVIEW
In his application for judicial review lodged on 23 January 2018 (dated 16 January 2018) the applicant seeks an order that the decision of the Authority be quashed and that it be remitted to be determined according to law. The application lists eight grounds of alleged error, namely:
1.The IAA failed to afford procedural fairness.
2.The IAA made a finding without supporting evidence, namely, the IAA does not have or provide medical evidence that a stroke did not affected the applicant’s memory.
3.The IAA erred in the findings that the applicant was never a Falun Gong practitioner.
4.The IAA erred in construing the applicant debt. The applicant took out a loan of 900,000 RMB which remained the same in 2005 and in 2015 if the applicant could not pay off its principals. However, the loans interests could increase substantially. As it was a loan from loan sharks, it is reasonable that the applicant did not know how much the outstanding was.
5.The IAA made findings based on the incorrect presumption that the applicant ought to tell his son about his fears and debts.
6.The IAA erred in making a finding that the applicant’s daughter-in-law had capacity to provide financial assistance to the applicant because the she could provide security bond for his release from detention centre.
7.The IAA failed to consider the data breach is a separate claim that the Chinese authority can use the disclosed information against the appellant regardless of whether the applicant was a Falun Gong practitioner.
8.The IAA erred in considering the data breach and Falun Gong as dependently related claims.
Judicial review hearing
The applicant was self represented throughout these proceedings. He has not sought to be represented by a legal practitioner. The Minister has been represented by the Australian Government Solicitor (AGS) and appeared by counsel.
On 31 October 2018 case management orders were made requiring the applicant to file any amended application at least 28 days before the hearing, together with written submissions. The Minister was directed to file and serve a court book, an outline of submissions and a reply to any submissions filed by the applicant.
On 29 November 2024, at a telephone directions hearing, the applicant appeared with the assistance of a Mandarin interpreter. At that hearing, the applicant confirmed that he had received a copy of the court book.
At the hearing before me on 10 February 2025, the applicant confirmed that he had a copy of the court book and had received the Minister’s outline of submissions. In an affidavit of service, an AGS solicitor Ms Madisen Anne Scott deposed that the applicant had been served with the Minister’s submissions, the court book and an affidavit of Laura Jean Groves filed 28 January 2025.
The affidavit of Laura Jean Groves, another solicitor from the AGS, annexes various documents which were not before the Authority but which the Minister considered should properly be before the court on this judicial review application. Those documents included the following:
(a)documents covered by two s 473GB non-disclosure certificates, being:
(i)Serco Individual Management Plan, 21 September 2011
(ii)Security Bond Lodgement relating to a bond paid to secure the release of the applicant from detention
(iii)front page of the applicant’s daughter-in-law’s protection visa decision record
(b)a scanned copy of the Department’s file from the applicant’s first protection visa application opened in August 2011; and
(c)a scanned copy of the Department’s file relating to the applicants second protection visa application opened 6 November 2013.
As the applicant is located interstate and claims restrictions on his mobility and travel, I acceded to his request to appear electronically by Microsoft Teams. The applicant was assisted by a Mandarin interpreter who also appeared electronically.
Before inviting the applicant to address the Court, I provided him with an explanation about the Court’s role in a judicial review proceeding and guidance about the procedure the Court would adopt during the hearing. I explained to the applicant that the Court cannot review the merits of the Authority’s decision or grant the visa that he seeks. I informed him that the role of the Court was restricted to determining whether the Authority made a material error in arriving at its decision. I emphasised to him that he should endeavour to explain why the Authority made an error in its decision-making and what he believes the Authority did wrong. My explanation was interpreted and based on the applicant’s responses I am confident he properly comprehended the scope and purpose of the hearing.
Applicant’s submissions
Despite being afforded the opportunity to do so, the applicant did not make any substantive submissions or otherwise address the grounds of review in his application.
The applicant said that he did not have a “clear mind” and that he could not remember the things that happened in the past. He said that he could not remember the Authority’s decision. But in answer to a question from the bench, he said he did remember filing the application for review.
I asked the applicant to explain what he believes the Authority had done wrong. He said “ask my solicitor”. I note at this juncture that the applicant does not have a solicitor on the record and has never been represented in this proceeding. He continued “I don’t know what to say. I don’t know how to say it.” I also asked the applicant what he wanted me to do in relation to his application, to which he responded “I don’t know what to say”. I also asked the applicant whether he had any comment to make about the Minister’s written submissions, to which he offered no response.
After giving the applicant a further opportunity to make a submission, I informed him that I would hear from the Minister’s counsel and that I would then return to him and provide an opportunity to respond. The Minister made submissions, which I address below, and when I returned to the applicant for reply his only comment was to the effect “Immigration has already released my information on the internet” and he expressed concern that the Chinese government might have access.
Notwithstanding that the applicant did not present any arguments, his eight grounds of review were addressed by the Minister’s counsel and it is to those that I now turn.
Ground one
Ground one alleges a general denial of procedural fairness. No explanation has been advanced by the applicant to clarify the contention and no particulars have been provided.
The decision of the Authority was made according to the fast track review process in Part 7AA of the Act. As observed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17]:
“[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority [...] is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.”
The practical role of the Authority under Part 7AA was helpfully explained by Judge Kelly in CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 at [24] - [25] where his Honour stated:
“[24] In contrast with a review under Pt 5 or Pt 7 of the Act, the fast-track scheme provided by Pt 7AA is a mechanism of limited merits review. Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority; requires that the Authority should ordinarily conduct its review on the papers; provides for the exceptional, and strictly circumscribed, circumstances in which new information or documents may be sought or employed; and authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.
[25] In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant. The Authority may, but is under no duty to, get any documents or information that was not before the delegate. Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.”
[citations omitted]
A central element of the Authority’s fast track review process is the exhaustive statement of the natural justice hearing rule as set out in Division 3 of Part 7AA.
Pursuant to s 473DB there is no duty on the Authority to conduct a hearing or to request new information from the applicant[1], although the Authority has the discretion to do both. Section 473DD provides that new information is only able to be considered in exceptional circumstances. If the Authority proposes to consider any new information, section 473DE requires the Authority to explain the relevance of the information to the applicant and to afford the applicant an opportunity to provide comments in writing or at an interview.
[1] See ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
In the present case the Authority noted that the applicant did not provide any new information, nor had any new information been obtained or received by the Authority[2]. The Minister submits, and I accept, that ss 473DD and 473DE were not enlivened. I also agree that in the circumstances of this case there was nothing unreasonable about the Authority not exercising its power to get new information[3].
[2] Immigration Assessment Authority Reasons (IAA Reasons) at [4]
[3] Migration Act 1958 (Cth) s 473DC(2)
Referred material
The Part 7AA scheme anticipates that the fast-track process will be conducted as a desktop review of the visa application “on the papers”. To facilitate that task, s 473CB requires:
473CB Material to be provided to the Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each FastTrack reviewable decision referred to the Authority under section 473CA:
[…]
(c)any other material that is in the Secretary’s possession or control that is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review:
At [3] - [5] of its reasons, the Authority set out the review material which had been referred to it. That material included the applicant’s third visa application lodged on 12 September 2017, his written statement dated 20 September 2017, the recording of the protection visa interview on 16 October 2017, the delegate’s decision on the third visa application and copies of the RRT decisions in relation to the applicant’s first visa application in 2011 and second visa application in 2015. The Authority also noted that the review material included two certificates under s 473GB of the Act which covered three documents, only one of which the Authority considered potentially relevant to the review.
At [10] of its reasons, the Authority noted that although it had access to the RRT decisions in relation to the applicant’s first and second visa applications, it did not have the applications themselves. The Minister acknowledges that this begs the question whether Departmental files relating to the applicant’s earlier visa applications might have been relevant to the review. Specifically, the Minister concedes that questions arise as to whether[4]:
(a)material held on the Department’s files was “relevant” such that no reasonable person could have concluded otherwise. If it cannot be said that the failure of the Secretary to refer the materials was unreasonable, then there is no breach;
(b)if it is found that the failure to refer the material was unreasonable, then the question arises as to whether the failure to refer the material was a material error.
[4] CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367 at 34 (CQR17)
As previously mentioned, the Minister filed and read an affidavit of Laura Jean Groves affirmed on 27 January 2025. That affidavit annexed what Ms Groves described as a complete copy of the Departmental files for the first and protection visa applications – these being documents which did not form part of the material referred to the Authority.
In her submissions to the court, Ms McInnis conceded that there was information contained within those files which could have been potentially relevant to the Authority’s review, particularly in relation to the applicant’s articulated claims for protection. Ms McInnis identified the following:
(a)the applicant’s first visa application, in particular his response to Question 42 “Why did you leave that country?”[5]. There the applicant gave an explanation regarding his history of unpaid debt and his adoption of Falun Gong practice. He claimed to have been detained because of those debts and his association with the religion. The applicant said he came to Australia because he feared persecution and imprisonment;
(b)in his first visa application the applicant presented two documents which purported to be from Chinese courts[6], one of which related to the enforcement of debts and the second which asserts that the applicant had been suspected of inciting to overthrow the state by sending brochures and DVDs of Falun Gong material. These documents were not before the Authority;
(c)a copy of extracts from the applicant’s passport;
(d)a “Compliance Client Interview” document[7] prepared on 21 July 2011 which recorded the applicant’s responses to questions asked of him when he was located in the community as an unlawful noncitizen; and
(e)the applicant’s second visa application[8]. There, in answer to Question 43, the applicant stated “To escape the persecution by the authorities and harm by the creditors and their debt collectors”.
[5] Court Book (CB) 219
[6] CB 228-233
[7] CB 281
[8] CB 314
The Minister submits that the non-referral of these documents to the Authority does not evidence any denial of procedural fairness. The Minister submits that the test is not whether the Court considers the documents might have been or were relevant to the review, or whether the Court could have subjectively concluded that the document was irrelevant to the review. Rather, the test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review[9].
[9] CQR17 at [39]
The Minister submits that it was relevantly open to the Secretary to conclude that the documents contained on the Departmental files were not relevant to its review of the refusal of the applicant’s third visa application. Alternatively, if the documents were potentially relevant, there was no practical denial of procedural fairness because the documents would not have added anything to the third application.
I agree with those submissions.
In the present case the Authority had before it a copy of the RRT reasons for affirming earlier decisions by delegates to refuse the applicant a protection visa. In each of those decisions the RRT recorded at length the various claims upon which the applicant relied in support of his application. The Authority noted[10] that in the first application the applicant claimed to fear persecution in China on the basis that he is a Falun Gong practitioner and he has a large unpaid debt. The Authority also noted that in the second and third applications the applicant again claimed to fear persecution in China on the basis that he is a Falun Gong practitioner and has a large unpaid debt, with the added claim in the third application that he feared persecution because of the release of personal information by the Department.
[10] IAA Reasons at [9]
Relevantly, at [10] of its reasons the Authority acknowledged that the claims recorded in the RRT decisions had been discussed at length with the applicant at the protection visa interview on 16 October 2017. The Authority found that in the absence of any information to the contrary (and none was identified) the accounts of the applicant’s claims as recorded in the RRT decisions should be regarded as reliable.
I agree with the Minister’s submission that there was an evident and intelligible justification for the Secretary to exclude the Departmental files where the Authority had before it Tribunal decisions which accurately recorded and assessed the same claims[11] upon which the applicant was relying in his third application. Moreover, I cannot see how there was any practical denial of procedural fairness where those very claims were discussed at length with the applicant at the protection visa interview for the third application and where the Authority had access to the recording of that interview. In that interview with the delegate the applicant did not raise anything new, nor did the applicant make any submission to the Authority that the delegate had not understood his claims for protection.
[11] See e.g. [21] of the first Refugee Review Tribunal (RRT) decision, CB 20
I am also of the view that even if the Chinese court documents were potentially relevant to the Authority’s review, their exclusion from the referred material did not lead to any practical injustice. The first RRT[12] decision described those court documents in detail[13]. Although the documents themselves were not before the Authority, the description of them was such that the Authority can be taken to have been fully aware of them and their potential relevance. There is nothing in the Authority’s reasons which would suggest that the applicant was in any way disadvantaged by their exclusion from the referred materials.
[12] CB 17
[13] First RRT decision at [24], CB20
Similarly, the non-inclusion of the “compliance client interview” document did not occasion any denial of procedural fairness. That document was silent in relation to the applicant’s claims for protection. Upon been detained by the authorities, the applicant did not say that he was unable to return to China because of his Falun Gong beliefs or unpaid debts. In my view it was entirely open to the Secretary to find that there was nothing relevant in those documents. There can be no denial of procedural fairness in not referring documents that could only have been adverse to the applicant.
Finally, the non-referral of a copy of the applicant’s passport (noting that the Authority did have a photo extract) and other administrative-type documents from the first and second visa applications was entirely explicable. The applicant had made a fresh application for a protection visa and had completed those forms in a manner similar to the way he had done before. Those documents would, in my view, have added nothing to the Authority’s review.
I am satisfied on the evidence before me that there has been no breach of s 473CB. However, even if there had been a breach, in my view it was not so grave as to have prevented the Authority from conducting the review contemplated by Part 7AA of the Act[14].
[14] EVS17 v Minister for Immigration (2019) 268 FCR 299 at [35]
Non-disclosable information
The Minister also speculated that the applicant might seek to impugn the Authority’s decision on procedural fairness grounds because documents provided to the Authority under cover of s 473GB certificates were not put to the applicant as “new information” under s 473DE.
As previously mentioned, two s 473GB non-disclosure certificates were provided to the Authority but the existence of these certificates and the documents covered by them was not disclosed to the applicant. The Minister now concedes that the certificates were invalid because they were issued for the protection of third-party information, which is not a reason available under s 473GB.
I accept the Minister’s submission that neither the invalidity of the certificates nor the non-provision of the documents to the applicant constitutes jurisdictional error. First, two of the documents (the Individual Management Plan and the first page of the delegate’s decision relating to the applicant’s daughter-in-law) were not considered to be relevant by the Authority and were not considered by it. The applicant was on notice of the relevant information in the third document (Security Bond lodgement form) because the delegate had already invited the applicant to comment on information in that document. Secondly, even if the certificate was invalid, the documents were all before the delegate and did not constitute “new information” which was required to be put to the applicant.
The applicant has not established any denial of procedural fairness. Ground one is not made out.
Ground two
By this ground the applicant contends that the Authority did not have medical evidence to support its finding that his stroke did not affect his memory.
The applicant did not further elaborate on this ground at the hearing of the application for judicial review. The Minister submits that the asserted ground has no proper basis.
The Authority’s finding at [24] of its reasons was that it did “not accept that the applicant’s claim that a stroke affected his memory explains the lack of detail in his evidence or the significant inconsistencies or the omissions in his evidence”. The Authority did not have medical evidence before it but it reached its conclusion about the effect of the stroke on logical grounds, namely that the applicant had been able to provide detail at a previous interview and at two previous RRT hearings all of which took place after the stroke. There was no requirement for the Authority to have robust medical evidence before holding that the applicant’s assertion was not made out[15].
[15] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at [7]
Insofar as ground two implicitly asserts that the Authority denied the applicant procedural fairness or acted unreasonably in failing to exercise the power in s 473DC(3) to obtain further information about the applicant’s medical condition, I reject the assertion.
The Minister submitted that the onus rested with the applicant to put evidence before the Authority regarding his mental capacity or any impairment. The Minister submitted, and I agree, that the Authority was not obliged to get new information[16], even if it thought the applicant’s claim could have been put a better way.
[16] Migration Act 1958 (Cth) s 473DC
The delegate relied upon the applicant’s inability to recall things accurately, so the applicant was on notice before the review that his memory was an issue. One would have thought that the applicant would have had information available to him to support his claim that the stroke impacted his memory, but he did not advance any such evidence. The applicant had an opportunity to make submissions to the Authority or to endeavour to advance further evidence, but he did not.
The Authority did not act unreasonably in failing to obtain further information from the applicant. As previously mentioned, the fast track review under Part 7AA of the Migration Act contemplates a review on the papers without accepting or requesting any new information. In circumstances where it was open to the Authority to find that the applicant was not impeded from providing information at more recent interviews and Tribunal hearings, this was not an occasion where the Authority was required to exercise its discretion to seek further information.
Ground two is not made out.
Ground three
By this ground, the applicant asserts that the Authority erred in finding that the applicant was never a Falun Gong practitioner. I accept the Minister’s submission that this ground invites impermissible merits review.
The applicant’s claim that he was a Falun Gong practitioner was central to his claims for protection. So much is self-evident from a fair and complete reading of the Authority’s reasons. The Authority did not arrive at its conclusion arbitrarily. The Authority’s finding that the applicant was not a practitioner of Falun Gong was based on, inter alia:
(a)the applicant’s lack of knowledge of Falun Gong, its practice and its foundational document;
(b)an array of inconsistencies in the applicant’s evidence regarding his introduction to Falun Gong and his observance of its practices;
(c)his delay in seeking protection based on his fear of persecution for involvement with Falun Gong; and
(d)his inability to answer questions and inconsistencies put to him by the delegate.
The Authority’s finding was open to it on the material before it. It was a reasonable and rational conclusion. Ground three is not made out.
Ground four
The applicant contends that the Authority erred in its assessment of his indebtedness to loan sharks. The applicant says he took out a loan of 900,000 RMB in 2005 which remained the same in 2015 after he could not pay off its principal. By this ground the applicant seems to argue that the Authority was wrong to criticise him for not being able to recall the current amount that was owed.
At [27] of its reasons, the Authority noted that the applicant could not recall his current debt in China when he was interviewed by the delegate on 16 October 2017. But the Authority noted that the debt must be substantial and that it had not been repaid since the applicant arrived in Australia.
At [28], the Authority noted that at the protection interview in October 2017, the delegate questioned the applicant’s evidence that the debt had remained unchanged between 2005 and 2015. The delegate had also raised the second Tribunal’s observation that it was implausible the debt had not increased. The Authority also found it not credible that the loan would not have increased, given the applicant’s claim that his creditors were loan sharks and members of a triad.
The Minister submits, and I accept, that the Authority did not reject the debt claim because the applicant could not recall the amount. It was not a finding about the applicant’s memory. Rather, the Authority’s finding was based on the applicant’s failure to explain why the debt amount had not increased between 2005 and 2015 and the implausibility that it would not have increased having regard to the character of those from whom he borrowed money.
In my opinion, this ground invites the Court to engage in merits review of the Authority’s finding. This ground must be dismissed.
Ground five
By ground five, the applicant asserts that the Authority made findings based on the incorrect presumption that the applicant ought to have told his son about his fears and debts.
At [31] of its reasons the Authority referred to the applicant’s evidence that he did not tell his son about his financial issues. The delegate had referred to a finding by the second RRT that it was difficult to accept that the applicant was fearful of serious or significant harm, being beaten, arrested and even killed as a result of the alleged debt, and had not to reduce the incidence of that harm, yet failed to do so because he did not tell his son about his financial circumstances.
The Authority observed at [32] that the applicant’s son was a 25-year-old adult and a dependent applicant in the second application. The Authority found that it was reasonable to suppose that the applicant would have told his son about the threats to his life concerning a large unpaid debt. Indeed, the Authority found it likely that the applicant did tell his son about the debt and his fears being harmed and persecuted.
I agree with the Minister’s submission that even if there was an assumption that the applicant would have been expected to tell his son, such an assumption would not be legally unreasonable. It is a matter of ordinary experience that family members talk about their lives, and that this would include important matters such as whether a family member needed financial assistance or was fearful for their life[17]. The making of such an assumption (if it did occur), would in my view be a sound basis for the assessment of the applicant’s evidence and it would not give rise to jurisdictional error.
[17] Republic of Nauru v WET040 (No 2) (2018) 93 ALJR 102 at [29], [35]; BIS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 730 at [12]- [14]
Ground five is not made out and must be dismissed.
Ground six
By this ground the applicant contends that the Authority erred in finding that his daughter-in-law had the capacity to provide financial assistance because she had provided a security bond for his release from a detention centre.
The premise for this ground of review is misconceived. The Authority did not find that the applicant’s daughter-in-law had the financial capacity to assist the applicant to repay the debt.
At [34] of its reasons the Authority noted that the applicant had received some financial assistance or offers of financial assistance from family members in Australia. The Authority noted that the applicant’s daughter-in-law had assisted him by providing a security bond for his release from detention. It also noted that his brother-in-law had offered financial support. These observations led to the Authority’s conclusion that “[…] it is reasonable to expect that he would at least have approached them about financial assistance because of the claim to fear of harm”.
The finding was not that the daughter-in-law would have been able to assist him to pay the loan. Rather, the Authority’s reasoning was that it was reasonable to have expected that the applicant would have approached family members - and the finding that he did not do so suggested the debt did not exist.
Ground six is dismissed.
Ground seven and eight
Both of these grounds relate to the applicant’s claim that the release of private information by the Department may have the consequence of him being harmed by creditors because of his debt or by the police and Chinese authorities because of his Falun Gong practice.
The essence of grounds seven and eight is the applicant’s assertion that the Authority failed to consider the data breach claim separately and independently of his Falun Gong claim. I do not accept this assertion and the ground is not made out.
I am satisfied that the Authority considered the applicant’s data breach claim both independently and cumulatively with his other claims for protection. In doing so the Authority discharged its statutory task.
At [36]-[38] of its reasons, the Authority noted the applicant’s claims in relation to the data breach took the following forms:
(a)a risk of harm not only from the authorities in China, but also from foreign security and intelligence agencies, terrorist organisations and criminal syndicates, human resources sections of companies and public service departments, and that the breach would undermine the applicant’s ability to find employment and be granted visas to travel; and
(b)a heightened risk of harm from creditors because of his debt and harm from police because of his Falun Gong involvement.
In relation to these claims considered cumulatively, the Authority found that the data breach did not pose a heightened risk for the applicant. This was because Authority had rejected the applicant’s claims and his claimed profile arising from his alleged debt and Falun Gong practice[18]. Logically, with those claims rejected, the data breach could not heighten associated risk.
[18] IAA Reasons at [40], [44]
The Authority also considered the data breach claim independently of the debt and Falun Gong claims. In terms of the claimed risk of harm from the authorities in China and other agencies and the impact of the data breach on the applicant’s ability to find employment and be granted visas for travel, the Authority considered the claim against the applicant’s profile and country information regarding returning asylum seekers[19].
[19] IAA Reasons at [42]-[43], [45]
The Minister submits that grounds seven and eight cannot be sustained when the Authority’s reasons are read as a whole and in context. When read in that manner I am satisfied that the Authority did consider the data breach claim independently and cumulatively and thereby discharged its statutory task without error.
These grounds are also dismissed.
DISPOSITION
In this matter the applicant appeared at the hearing but failed to avail himself of the opportunity to make any oral or written submissions in support of the grounds of review. The Minister, through counsel, as a model litigant, carefully posited each of the grounds and explained why they failed to disclose jurisdictional error.
The reasons set out above, I am satisfied that the Authority’s reasons were not affected by jurisdictional error. Accordingly, the application will be dismissed and I will hear the parties on costs.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 18 February 2025
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