APW17 v Minister for Immigration
[2019] FCCA 2689
•24 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APW17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2689 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal gave the applicant a fair opportunity to present his case – whether actual bias or the apprehension of bias was present in the Tribunal’s decision – whether the Tribunal’s decision was unreasonable or illogical – ground 3 seeks impermissible merits review – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 476 |
| Cases cited: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 |
| Applicant: | APW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 440 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 11 September 2019 |
| Date of Last Submission: | 11 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr D.J. McDonald-Norman |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 15 February 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 440 of 2017
| APW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 15 February 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 25 January 2017 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents (the Court book – “CB” – “RE1”).
Background
The applicant is a citizen of the Peoples’ Republic of China (“China”) (item 21 at CB 13). He arrived in Australia on 30 May 2014 as a visitor (item 29 at CB 13). He applied for the protection visa on 27 August 2014 (CB 1, CB 27). He was assisted by a registered migration agent (at CB 27, and generally at CB 1 – CB 33).
The Applicant’s Claims to Protection
The applicant’s written claims as set out in his application for the protection visa provide an account of the applicant’s history in China. What emerged from this was that he claimed to fear harm on return to China as follows.
A Mr Zhou who lived in the applicant’s home village was a “local bully” who used his familial connections with local government authorities, including the police and the courts, to take advantage of “ordinary people”.
Mr Zhou had pressured the applicant’s former work “master”, Mr Lin, to sell his home to him. He refused to sell for an amount below the “market price”.
During a visit to Mr Lin’s house in February 2014, Mr Zhou and others came to his “masters” house and assaulted Mr Lin and the applicant. Mr Lin died on 3 February 2014 and his wife died on 8 February 2014.
The applicant approached the Public Security Bureau (“PSB”) and made complaints about Mr Zhou to the anti-corruption bureau of the city government. He also approached news media.
The applicant also decided to make complaints against Mr Zhou, Mr Zhou’s family, and corrupt police and officials, to the provincial government.
The applicant claimed he was arrested by the PSB on 6 March 2014. He was accused of spreading “rumours” and to have acted to “incite people against the Communist government”. He was treated “inhumanly” during interrogations. He was transferred to a detention centre where he was held for more than three weeks.
He was “temporarily” released on 28 March 2014 when a friend, Mr Gao, paid a bribe to police. He left China on 29 May 2014 with the assistance of his friend, who had made the necessary arrangements.
He feared that on return to China he would be: “…arrested, imprisoned and subjected to significant harm”.
In early July 2015 the applicant’s migration agent produced certified copies and translations of, relevant to the Tribunal’s decision, the following documents (CB 58):
1 “Decision on Guarantor Pending Trial” dated 28 March 2014 (Guarantor Document) (CB 62 – CB 63);
2 “Medical Certificate of Death” in respect of Mrs Lin (CB 64 – CB 67); and
3 “Medical Certificate of Death” in respect of Mr Lin (CB 68 – CB 71).
The Delegate
The applicant was interviewed by the delegate on 14 July 2015 (CB 80.7). The delegate refused the grant of the visa on 22 July 2015 and notified the applicant of this (CB 74 – CB 92).
The delegate found that the applicant’s “evidence was generally unreliable” (CB 91.5) and found that he had not been threatened by a “gangster” (Mr Zhou).
The delegate found that the applicant was unable to “substantiate” the claim of having come to the attention of the Chinese authorities.
The Tribunal
The applicant applied for review to the Tribunal on 18 August 2015. He continued to be represented by the same migration agent (CB 93 – CB 100). A copy of the delegate’s decision was given to the Tribunal (CB 100).
The applicant was invited to, and ultimately attended, a hearing before the Tribunal on 18 November 2016 (CB 131 – CB 139). His migration agent was present at the hearing (CB 146 – CB 149).
The Tribunal made its decision on 25 January 2017 (CB 155 – CB 166). The Minister’s written submissions provide a comprehensive, and importantly a fair, summary of the Tribunal’s reasoning, and findings:
“7. On 25 January 2017, the Tribunal affirmed the Delegate’s decision: CB 155-166. The Tribunal found, relevantly, as follows:
(a)The Tribunal found that the applicant’s evidence at the hearing was “broadly consistent with the claims appearing in his application”: CB 158 [15]. To that end, the Tribunal found that “[e]xcept where indicated otherwise”, the applicant “was a reliable witness”: CB 158 [15]. The Tribunal found, in this regard, that both the applicant and Mr Lin were injured by Mr Zhou and his accomplices on 2 February 2014: CB 158 [18]. But the Tribunal found that from that point it “[did] not accept the applicant’s claims”: CB 159 [19].
(b)The Tribunal identified its “difficulties” with the applicant’s claims to have reported the attack on 2 February 2014 to the authorities and the media, to have been arrested, tortured and detained by the authorities and to have been charged with offences of spreading rumours and participating in anti-government and Communist activities to be as follows:
(i)The “first difficulty” found by the Tribunal was that the applicant had “produced no corroborative evidence of being charged and being released on bail”: CB 159 [21]. While the Tribunal noted that the applicant had produced the Guarantor Document, it found that this document “contains a number of ambiguities”: it described the applicant as a farmer (when he had not described himself as such); it stated that he was suffering from a serious illness (when he had not previously mentioned this); it stated that a decision had been made to place him under a guarantor from 28 March 2014 (when the document itself was dated 28 March 2014); and, while the document stated that he had been placed under a guarantor pending trial (suggesting that he had been charged with offences), it also stated that he was “now under investigation”: CB 159 [21]. (These findings are discussed at greater length below.) “Given these matters”, the Tribunal did not afford any weight to the Guarantor Document: CB 159 [21].
(ii)The “second difficulty” found by the Tribunal was that the applicant had claimed to have left China through legal channels, and to have had no difficulty in leaving China, because of the assistance of Mr Gao. The Tribunal found this to be “far-fetched, and not reasonable to believe as true”, given that the applicant had also claimed to have been the subject of weekly reporting requirements to the police and given country information as to entry and exit procedures at Chinese airports: CB 159 [22].
(iii)The “third difficulty” found by the Tribunal was that the applicant’s evidence as to Mr Lin and his death was “extremely detailed, and consistent with what appeared in the applicant’s statement” – but that his evidence about “his complaints to government authorities, his approaches to the media, his detention, charging and release on bail, and subsequent obtaining of a visa” was, by contrast, “superficial, confused and not persuasive”: CB 159 [23]. The Tribunal cited, in this regard, the applicant’s unclear response to inquiries as to why he had applied for a tourist visa on 30 April 2014: CB 159 [24]. The Tribunal further did not accept the applicant’s explanation as to why his boss had assisted him in leaving China as “reasonable to believe as true” (CB 160 [23]), and found the applicant’s answer as to why he came to Australia and what his plans were to be “unresponsive to its question” (CB 160 [24]).
(c)The Tribunal did not accept the applicant’s claim that, since leaving China, his family had been harassed by the police and by Mr Zhou, given that “the applicant was unable to provide corroborative details of these claims”: CB 160 [26] and [29].
(d)Having regard to the above, the Tribunal did not accept that the applicant reported the attack on Mr Lin to a number of authorities; that the applicant tried through the media to bring attention to the attack; or that the applicant was arrested on 6 March 2014, detained and tortured: CB 160 [27]. The Tribunal did not accept that the applicant was charged with any offences, that he was released on bail or that he was required to report on a weekly basis to local police: CB 160 [28]. The Tribunal did not accept that there was a real chance that the applicant would face a real chance of significant harm from Mr Zhou if he were to return to China, given that “Mr Zhou’s problem was with Mr Lin, and the failure of Mr Lin to transfer his house”: CB 160 [29].
(e)Having regard to the above, the Tribunal did not accept that the applicant would face a real chance of serious harm because of his political opinions or activities (CB 161 [33]) or from Mr Zhou and his associates (CB 161 [34]) if he were to return to China. Given such, the Tribunal was not satisfied that the applicant was a refugee under s 36(2)(a) of the Migration Act (CB 161 [35], CB 162 [40]) or that there waere substantial grounds to believe that, as a necessary and foreseeable consequence of his removal from Australia to China, there was a real risk that he would suffer significant harm in terms of s 36(2)(aa) of the Migration Act (CB 161 [38]-[39], CB 162 [41]).
(f)Having regard to the above, the Tribunal affirmed the Delegate’s decision.”
[Error in the Original.]
The Applicant’s Grounds
The applicant applied to this Court for judicial review of the Tribunal’s decision on 15 February 2017. The grounds of the application are in the following terms:
“1. I believe the Tribunal has not given me a fair opportunity to present my case. I believe the Tribunal has made a preconceived judgement regarding the legitimacy of my case and, thus, conducted the hearing with a biased perspective.
2. The Tribunal has stated I am a ‘reliable witness’ and my evidence was ‘broadly consistent’ yet continues on to indicate specific inconsistencies in my claims that has made his affirm my application. This contradicts the Tribunal’s assessment of my evidence and, thus, I believe the Tribunal has predetermined the outcome of my application and has picked specific points in my claims to support his prejudgement.
3. The Tribunal’s decision has denied me of an opportunity to seek protection in Australia. Consequently, I will be sent back to China where persecution and harm is invitable. For this reason, I must appeal to the court in hopes the court can set aside the Tribunal’s decision.”
[Errors in the Original.]
Before The Court
By orders made by a Registrar of the Court on 8 June 2017, the applicant was given the opportunity to file an amended application, evidence by way of affidavit, and written submissions. By the date of the hearing nothing further had been filed by the applicant.
At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. The Minister was represented by counsel.
The applicant submitted that the grounds of the application to the Court had been drafted by a friend who was not a lawyer. He confirmed that he did not know what his friend had written for him.
In this light, with the assistance of the interpreter, I read each of the grounds to the applicant, and gave him the opportunity to make submissions on each. His submissions (such as they were) are reported below.
Consideration
There appear to be two elements to ground 1. First, that the applicant was not given a fair opportunity to present his case. Second, that the Tribunal made a “preconceived judgement”.
When given the opportunity to make submissions on ground 1, the applicant replied: “nothing”.
First, in relation to the assertion that he was not given a fair opportunity to present his case.
The applicant was invited to a hearing pursuant to s.425 of the Act. On the evidence before the Court, the invitation complied with all relevant statutory and regulatory requirements. The applicant attended the hearing, and his migration agent was present.
The applicant’s ground is absent any particularity whatsoever to explain the claim he was denied a fair opportunity to put his case (other than for the second element in ground 1 – see below).
Despite opportunity to do so, the applicant has provided no transcript of the Tribunal hearing, or any other evidence, as to what may have occurred at the hearing. The only evidence available to the Court are the references to the hearing in the Tribunal’s decision record.
There is no indication from this that the applicant was denied a fair opportunity to present his case. As the Minister submitted, on the evidence, the hearing, at which the applicant’s representative was present, lasted for about two and three-quarter hours (see CB 147 – CB 148).
The absence of any particularity to explain this first contention in ground 1 (if it is to be seen as separate to the second contention), and the applicant’s inability to explain the complaint, means that this element of ground 1 cannot be sustained. In any event, on the evidence available, this complaint is not made out.
Second, the ground also asserts “preconceived judgement” on the part of the Tribunal. There are no particulars to this complaint. Nor did the applicant seek to explain it before the Court.
If this was meant as some attempt to assert bias on the part of the Tribunal, or that an apprehension of bias might arise, then given the seriousness of such assertions such claims must be distinctly made (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Minister for Immigration and Multicultural Affairs v JiaLegeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), at [69]).
The tests for bias, and the apprehension of bias, are well settled (Jia Legeng, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 (“Ex parte H”)).
In the case of actual bias, said to arise from prejudgement by the decision maker, such a complaint must be: “...distinctly made and clearly proved” (Jia Legeng at [69] and [127]). This is because an allegation of bias, in contrast to other assertions of legal error, is extremely serious to make, because it is directed to the very integrity of the relevant decision maker.
The test for the apprehension of bias is explained in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] – [28] (per Gleeson CJ, Gaudron and Gummow JJ):
“27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.7 That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private.
28. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”
[Footnote Omitted.]
See also recently ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 (“ALA15”) at [35] and [36] and Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [6].
I cannot see on the evidence before the Court that any assertion of the apprehension of bias can be sustained.
In all, ground 1 is not made out in circumstances where the evidence before the Court is such that the necessary basis for either ground is not indicated, let alone made out.
Ground 2 asserts that the Tribunal made findings that the applicant was a “reliable witness”, and that his evidence was “broadly consistent”. Yet the Tribunal made other findings which were adverse to him, which were in contradiction to its other positive findings.
When asked to make submissions about ground 2 the applicant explained that he had not read the Tribunal’s decision in English. He used his “phone to translate”, presumably into Mandarin. On that basis he formed the view that the Tribunal had “already made a decision before he met me”.
This appeared to be a complaint also consistent with ground 1. It does not reveal jurisdictional error for the reasons already set out above. In relation to ground 2, he had nothing further to say.
There are two elements to ground 2 that require consideration. One, the ground as pleaded. Two, before the Court, in the context of this ground, the Minister, fairly, raised the issue of some of the Tribunal’s findings in relation to the applicant’s credibility.
The first element is that the Tribunal’s findings were contradictory. Although not expressed as such by the applicant, it may be that the ground implies that the Tribunal’s decision was unreasonable, or illogical.
In any event, there is no contradiction in the Tribunal’s reasoning or findings in the manner asserted by the applicant’s ground.
The quotes from the Tribunal’s decision found in ground 2 direct attention to [15] of the Tribunal’s decision (at CB 158):
“15. The applicant gave extensive evidence at the hearing, which was broadly consistent with the claims appearing in his application. Except where indicated otherwise, the Tribunal accepts the applicant was a reliable witness and makes the following findings.”
There is no contradiction in this paragraph. The applicant’s ground misunderstands that the relevant task of the Tribunal was to consciously engage with, in an intellectual sense, that is, to properly consider, the applicant’s claims and evidence.
Such consideration requires an evaluation of that evidence, so as to be able to make findings of fact, probative of the evidence, and on which the ultimate decision in the review is to be based. It is to be remembered that the statutory task for the Tribunal is to determine the likelihood of harm in the reasonably foreseeable future.
As was said by the High Court in Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) at 575 – 576):
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
…
In the present case, Einfeld J was critical of the tribunal…With respect to his Honour, this criticism of the tribunal's reasons is wrong. For the reasons that we have given, the tribunal was entitled to weigh the material before it and make findings before it engaged ‘in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded.’
The Tribunal’s finding that the applicant’s evidence at the hearing was broadly consistent with his written claims was reasonably open to it on what was before it.
It does not follow however, as is implicit in the applicant’s ground, that the Tribunal was bound, having made that finding, to then find that all of his evidence must be accepted as truthful.
The Tribunal’s finding that the applicant was a reliable witness was plainly qualified with reference to: “…Except where indicated otherwise …”.
There was no requirement for the Tribunal, having expressed its view that some of the applicant’s evidence was reliable, to then proceed on the basis that all of his evidence was reliable.
The Tribunal’s nuanced and appropriate approach to its task is to be found at [27] (CB 160):
“27. In summary, the Tribunal considers that the applicant’s evidence about the circumstances surrounding the attack on his Master to be detailed and consistent. However, it considers that the evidence relating to his complaints to government authorities, his approaches to the media, his detention, his being charged and released on bail, and subsequent obtaining of a visa not reasonable to believe is true. While the Tribunal accepts and finds that the applicant was born in China, and that his Master was attacked a Mr Zhou and his associates, resulting in the Master’s death, the Tribunal does not accept that the applicant reported the attack to a number of authorities, including the police and the anti-corruption bureau, but nothing was done in response to his reports. Nor does the Tribunal except that the applicant tried through the media to bring attention to the attack. The Tribunal does not find that the applicant was arrested by the PSB on 6 March 2014, taken to a detention centre, tortured for two days and detained for total of three weeks.”
[Errors in the Original.]
This is not a case where the applicant’s evidence was totally disbelieved. Rather, as a result of the proper evaluative and weighing process, the Tribunal found some evidence reliable and accepted it, and other evidence as being not reliable. Where a decision maker provides reasons for these findings, which arise from, and engage with, the evidence, no legal error is revealed.
This leads to the second element arising from the ground as raised by the Minister before the Court. The Minister explained this issue as follows. The Tribunal accepted that the applicant and his former master were both injured in an attack on 2 February 2014 at the master’s house and that his master died as a result ([18] at CB 158).
However, the Tribunal did not accept other consequential claims made by the applicant ([19] at CB 159). That is, that the applicant complained, as he had claimed, and had come to the adverse attention of the authorities. The Tribunal explained its difficulties with these claims ([21] – [27], at CB 159 to CB 160).
One of these difficulties, or as described by the Tribunal, “ambiguities”, is set out at [21] of the Tribunal’s decision (at CB 159):
“21. The first difficulty is that the applicant has produced no corroborative evidence of being charged and being release on bail. True it is he has produced the document titled Decision on Guarantor Pending Trial, but this document contains a number of ambiguities. First, it refers to the applicant as a farmer, when he has never described himself in his statement, or to the delegate or the Tribunal as such (although the Tribunal notes that his father was a farmer). [Item 1 as referred below]. Secondly, the applicant is described as suffering from a serious illness, a matter that again was never mentioned in his statement, or to the delegate or the Tribunal. [Item 2 as referred below]. Thirdly, while the document states that a decision had been made to place him under a guarantor pending trial from 28 March 2014, the document is dated 28 March 2014. [Item 3 as referred below]. Fourthly, while the document states that a decision had been made to place him under a guarantor pending trial, which may suggest that the applicant had been charged with offences, the document also states that he was “now under investigation”. [Item 4 as referred below]. Given these matters, the Tribunal declines place any weight on this document.”
[Errors in the Original.]
[Emphasis Added.]
The other “difficulties” found by the Tribunal, as set out at [22] – [26] (CB 159 to CB 160), were logical, rational, and reasonably open to the Tribunal on what was before it. However two parts of [21] are problematic for current purposes.
As is set out at [21] (at CB 159) the Tribunal considered the document titled “Decision on Guarantor Pending Trial” (“the document”), which the applicant had provided with his application for the visa in corroboration of his claims. It decided to place no weight on this document.
The document is reproduced, with English translation, at CB 62 – CB 63. The Tribunal had four concerns with this document, which gave rise to the Tribunal’s finding of inconsistencies in the applicant’s claims in relation to the document.
Item 1. The document refers to the applicant as a “farmer”. The Tribunal found that the applicant never described himself as a farmer in any of his claims for the visa, or for the purposes of the review.
On what is before the Court, this finding was reasonably open to the Tribunal on what was before it. The document states that the applicant’s occupation is “farmer”. No such claim or description was otherwise advanced by the applicant. I agree with the Minister that no difficulty is revealed with the Tribunal’s decision in relation to this point.
Item 2. The document describes the applicant as suffering from a serious illness. That can be seen at CB 62.3. The Tribunal found that the applicant had never mentioned this in his written statement of claims to the delegate, or to the Tribunal.
However, the applicant had told the delegate that Mr Gao: “…paid bribe money to the police [to secure his release from detention] and told them he had a serious illness…” (CB 83.2).
Item 3. The Tribunal found that the document stated that a decision had been made to place the applicant: “…under a guarantor pending trial from 28 March 2014”. Yet the Tribunal stated the document was said to have been dated 28 March 2014. The Minister conceded that there is no evident inconsistency or ambiguity here.
Item 4. The Tribunal found that the document stated that a decision had been made to place the applicant under a guarantor “pending trial”, which may suggest that the applicant had been charged with offences. However, the document also stated he was “under…investigation”.
Given the reference in the document to the applicant: “…is now under the investigation by this Bureau” (CB 62.3), but also states that he is: “…under the guarantor pending trial…”, the Minister submitted that the Tribunal’s finding as to ambiguity was reasonably open. I agree.
I agree with the Minister’s characterisation of the Tribunal’s findings. Item 1 above was reasonably open to the Tribunal on what was before it. Item 4 above reveals that it was reasonably open to the Tribunal to find ambiguity in the applicant’s claimed status. The document is not clear in this regard on its face.
I also agree with the Minister that item 2 was not reasonably open to the Tribunal. The applicant had told the delegate that Mr Gao had told the police he was suffering from an illness.
As to item 3, it is at least unclear as to what the Tribunal’s concern was as to the relevant dates. In the circumstances, it was not reasonable for the Tribunal to find that this item raised any ambiguity.
What remains, therefore, is that items 2 and 3 above reveal errors in the Tribunal’s analysis. The Minister submits, however, that these errors do not reveal jurisdictional error, because they were not material, in the requisite sense, to the Tribunal’s ultimate decision to not place weight on the document.
The Minister relied on SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 (“SZWCO”) at [66] to support his submission. In that case, the Court (per Wigney, J) considered, amongst other things, the appellant’s argument (in a proposed amended notice of appeal) that sought to impugn 10 particulars in the Administrative Appeals Tribunal’s reasoning in that case, which was said to be unreasonable and illogical (see SZWCO at [57]).
The Minister submitted that the Court “accepted” that illogicality or irrationality in decision-making does not solely concern whether the ultimate conclusion is illogical or irrational (SZWCO at [62]).
However, the Minister also submitted this was subject to a significant proviso. At [64] (of SZWCO)the Court stated:
“64. Third, whilst the inquiry may not be limited to the question whether the end result is illogical or irrational, it does not follow that the ultimate decision will be found to have been affected by jurisdictional error if it can be shown that any finding made, or any reasoning employed, by the decision maker on the way to that ultimate decision may have been illogical or irrational. If the impugned finding or reasoning was immaterial to the ultimate decision, it is difficult to see how the decision could be said to have been affected by jurisdictional error: cf. SZRKT at [158]; SZOCT (per Nicholas J at [83]-[84]). Likewise, if the ultimate decision was supported by other findings that were open on the evidence, and other reasoning that was logical and rational, there may be no proper basis for concluding that the ultimate decision was so infected by the impugned finding or reasoning as to involve jurisdictional error.”
An “example” of this was said to have been provided at [66] (of SZWCO):
“66. An example, apposite to this case, may assist in illustrating this point. Many decisions of the Tribunal ultimately turn on findings about the honesty and credibility of the review applicant. If the Tribunal finds that the review applicant was not a credible witness and had falsified or exaggerated the claims that provided the basis for the claim that they had a well-founded fear of persecution, or were at risk of significant harm, it is likely to be open to the Tribunal to find that it was not satisfied that the review applicant was a non-citizen to whom Australia owed protection obligations. Often an adverse credibility finding is based on a number of facts and circumstances. If one of the findings, or the Tribunal’s reasoning based on that finding, could be said to be illogical or irrational, it does not necessarily follow that the Tribunal’s ultimate decision was affected by jurisdictional error. If the degree and nature of the illogicality or irrationality was not significant, and other facts and circumstances found by the Tribunal were capable of logically and rationally supporting the adverse credibility finding, or even that reasonable minds might differ based on those matters, it could not be concluded that the adverse credibility finding was illogical or irrational. Nor could it be found that the Tribunal’s decision that it was not satisfied that the visa applicant was a non-citizen to whom Australia owed protection obligations involved jurisdictional error.”
For current purposes, the Minister relied on [67] (of SZWCO):
“67. If, on the other hand, the illogicality or irrationality involved was extreme and significant, such that the adverse credibility finding was no longer supported by rational or logical findings or reasoning, that may be sufficient to support a conclusion that the Tribunal’s ultimate finding, its lack of satisfaction that the visa applicant had satisfied the criteria for a protection visa, was affected by jurisdictional error. That would almost certainly be the case if the Tribunal’s lack of satisfaction was not based on any independent finding that was unaffected by the illogicality. As has already been emphasised, however, generalisations are not desirable. There is no single test or form of words to describe what is sufficient. Each case must be considered on its own facts and circumstances.”
The Minister’s submissions before this Court were clear that each case turned on its own specific facts and circumstances. Nonetheless, the Minister submitted that SZWCO provides direction to this Court as to the principles involved, with examples as to their application, in addressing the question of whether the errors made by the Tribunal in the current case reveal jurisdictional error.
In summary, the Minister submitted that in relation to the document, the Tribunal relied on four reasons to find that it would not place weight on the document (the “Guarantor document”).
Two of those reasons were, for the reasons set out above, not available as a basis on which a logical or rational decision maker could come to the view that no weight should be placed on this document. However, there were, as also set out above, another two reasons on which such a rational and logical finding could be based.
That is, these other two reasons (items 1 and 4 above) each provide an independent logical and rational basis on which to place no weight on the document. On this basis the Tribunal’s reasoning, or decision, as a whole, could not be said to be irrational or illogical in the requisite sense.
The Minister also, fairly, drew the Court’s attention to Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 (“Gill”), where the Full Court at [82] referred with approval to SZWCO, and the summary of relevant principles in that case, but found that in the circumstances of Gill the impugned findings (see Gill at [79]) were material to the Tribunal’s decision.
At [81] of Gill the Full Court stated:
“81. Secondly, and perhaps more significantly, it is evident on a fair reading of the Tribunal’s reasons that its reasoning process leading up to its ultimate conclusion that the work experience letter was bogus and the appellant’s evidence lacked credibility was to weigh, on the one hand, all the adverse findings set out in [21] against, on the other hand, other matters which are set out in [22] and [23] and which may have explained the deficiencies in the appellant’s oral evidence. Those matters, as set out in [22] and [23] respectively of the Tribunal’s reasons for decision were:
(1) the Tribunal’s acknowledgment that the appellant was able to describe some aspects of Oakleigh Catering and the Tribunal’s acceptance that the appellant had visited the former premises of Oakleigh Catering, may have met Mr Phelps and even performed some basic kitchen hand duties; and
(2) the Tribunal’s acknowledgment that the appellant’s knowledge of his employment duties performed seven or eight years previously “may become diminished in some aspects”.”
The question in the current case then is whether the two factual errors in the Tribunal’s process of reasoning in relation to the ultimate finding on the guarantor document (which was a part of the reasoning in the ultimate decision to affirm the delegate’s decision), were material to that finding.
The Tribunal’s reasoning in relation to the guarantor document, which led to the conclusion that no weight be placed on it, involved two matters which were not, in the requisite sense, logical or rational, but another two matters which were.
In essence, the Tribunal’s finding that no weight be placed on this document concerned perceived ambiguities on the face of the document, and when compared with other evidence before it.
It is important to note that, unlike in Gill, in the four items identified by the Tribunal (at [21] of its decision record), each was found to contain ambiguity for reasons relevant only to each separate item. There was no process of weighing each of the items against the others to determine the relevant ambiguity which led to the finding that no weight was to be assigned to the document.
What remains therefore, is that of themselves, the two items which were logical or rational, and were reasonably open to the Tribunal, provide independent bases on which to base the conclusion that no weight be assigned to the document.
The Tribunal’s finding that the document describes the applicant as a farmer, when he otherwise made no such claim, is not dependent on any other item. It stands alone. It cannot be said that the Tribunal’s finding, of itself, in this regard was arrived at, or influenced by, the other three items.
Similarly, the guarantor document, in its terms, was not clear as to what stage the applicant had reached in the process to which he said he had been subjected. That is, was he still under investigation by the PSB, or had the investigation concluded, and was he awaiting trial, and not in detention because of the guarantee.
This ambiguity, or lack of clarity, arises from the face of the document itself. It also is not dependent upon any of the other items. Not the two items in which the Tribunal made error, nor the item (item 1) which was reasonably open to it.
In all, ground 2 is not made out for the reason stated in the ground, nor does it otherwise reveal jurisdictional error.
Ground 3 asserts that the Tribunal decision denied the applicant the opportunity to seek protection in Australia. The consequence of this is said to be that the applicant would be sent back to China where he would be harmed.
Before the Court, the applicant said he had “nothing to say about this ground”.
As it stands, the ground cannot be understood as anything more than seeking impermissible merits review. The ground does not assert or indicate legal error in the Tribunal’s decision, rather, it asks the Court to intervene so that the applicant would not have to return to China.
It is not appropriate to “set aside” the Tribunal’s decision, as the applicant’s ground requests, simply on the basis that the applicant now insists he would be harmed on return to China.
The question as to whether the applicant would face such harm is, given the relevant parts of the Act, ultimately for the Tribunal to determine, and not the Court. Ground 3 does not reveal jurisdictional error.
Conclusion
There is no jurisdictional error arising from the grounds of the application. It is appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 24 September 2019
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