AQH16 v Minister for Immigration
[2017] FCCA 1657
•21 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQH16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1657 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal – citizen of China – whether failure to take into account relevant consideration as to whether applicant will be subject to cruel or inhuman or degrading treatment or punishment – whether well-founded fear of persecution – whether Tribunal applied the wrong test – whether any error would have resulted in a different decision by the Tribunal – writs issued. |
| Legislation: 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Sch.2, items 7 and 12 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171; (2005) 88 ALD 257. Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 Aranson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th Edn) (Law Book Co, 2017) |
| Applicant: | AQH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 138 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 February 2017 |
| Date of Last Submission: | 28 February 2017 |
| Delivered at: | Perth (by video link to Sydney) |
| Delivered on: | 21 July 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That a writ of certiorari issue quashing the decision of the second respondent made on 16 February 2016.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 10 December 2015 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 138 of 2016
| AQH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 15 March 2016 the applicant filed an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”). A copy of the Tribunal Decision is at Court Book (“CB”) 146-154.
Although the applicant has applied for an extension of time in which to file the Judicial Review Application, no extension is required as the Judicial Review Application was filed within the 35 day time limit in s.477(1) of the Migration Act.
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of the People's Republic of China (China) who was born on 23 July 1979. He first entered Australia on 21 October 2012 as the holder of a student visa (subclass 570) which was granted on 5 October 2012 and was valid until 2 October 2013: CB 147 at [4]-[5];
b)the applicant applied for a further student visa on 30 September 2013 which was refused by a delegate of the Minister on 7 November 2013 as the applicant failed to meet the English language requirements (“Delegate’s Student Visa Decision”). The Delegate’s Student Visa Decision was reviewed and affirmed by the then Migration Review Tribunal on 27 February 2014: CB 147 at [5];
c)the applicant was granted four bridging visas on the basis that he was making appropriate arrangements to depart Australia. The applicant failed to depart Australia, but was then granted a further bridging visa on the grounds that he had made an application for Ministerial intervention under s.351 of the Migration Act. A decision was made on 14 June 2015 not to consider the application for Ministerial intervention: CB 147 at [6];
d)on 23 July 2015 the applicant's bridging visa was cancelled under s.116 of the Migration Act and the applicant was detained under s.189(1) of the Migration Act: CB 7-22;
e)on 26 August 2015 the applicant applied to the Department of Immigration and Border Protection (“Department”) for a Protection Visa. The applicant’s request for a further bridging visa was refused by a delegate on 31 August 2015, and that delegate’s decision was affirmed by the Tribunal on 11 September 2015: CB 147 at [7];
f)on 8 December 2015 the Delegate’s Decision was to refuse the Protection Visa application: CB 94-100;
g)on 10 December 2015 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 107-108;
h)the applicant appeared before the Tribunal on 10 February 2016, via video conference, to give evidence and present arguments, assisted by an interpreter in the Mandarin and English languages: CB 143-145 (“Tribunal Hearing”);
i)on 16 February 2016 the Tribunal Decision (further detail of which appears at [4]-[13] below) was to affirm the Delegate’s Decision not to grant the applicant a Protection Visa: CB 146-154; and
j)on 15 March 2016 the applicant filed the Judicial Review Application with the Court.
Tribunal Decision
Criteria
In the Tribunal Decision, the Tribunal set out the relevant criteria under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“Refugees Convention”) and complementary protection criteria for obtaining a Protection Visa: CB 147-148 at [8]-[12]. The Tribunal also noted the mandatory considerations concerning PAM 3 Policy Guidelines in accordance with Ministerial Direction No. 56 made under s.499 of the Migration Act: CB 148 at [13].
Claims
The Tribunal set out the claims made by the applicant:
a)in his written application for the Protection Visa;
b)in the interview with the Delegate on 16 October 2015; and
c)as made at the Tribunal Hearing on 10 February 2016.
The Tribunal noted that in his written application for a Protection Visa the applicant said that “he wished to leave China as there is ‘lack of love, lack of inclusiveness, lack of respect in China’” and that “if returned to China he ‘will lose myself and can’t be understood by others’”: CB 149 at [17], and claimed that if he was returned to China he “will have very high pressure and mental injury if I go back to China”: CB 149 at [17].
The Tribunal referred to the applicant’s written submission that he had used for an earlier Ministerial intervention application, and which he attached to the Protection Visa application, and in which the applicant said that various people had suggested to him ways that he could apply for refugee immigration, however:
I don’t want to break the law, to destroy orders, to get permanent resident rights by employing trickery, to defame the government of China or to hurt others with insincerity. I’m not here for money, either. I just want to be here. There is little possibility that my personal safety is to be violated, but I’m sure that my mental health would definitely suffer if I return back to China …. China is a nation lack of love … and lack of inclusiveness. Lack of love means lack of respect. Lack of respect for human contributes to the neglecting of human rights, justice and fairness. Lack of respect for nature leads to over-exploitation, environmental pollution and waste of resources. The combination of these problems leads to China’s current social situation: natural disasters occur frequently. People live under great pressure, lacking the sense of safety, as well as happiness …... I want to get married, raise children and live a harmonious family life. However, under the circumstances of lacking love in China it is almost impossible if you want to be yourself.
CB 149 at [18].
At the interview with the Delegate the applicant said that he feared he would suffer emotional and mental damage due to the lack of respect and social cohesion in China, and that he disliked the socio-cultural environment in China, and had applied for various visas to stay in Australia. The applicant said that his Protection Visa application “was a last option as he had not wanted to ‘create trouble for the Australian government’”: CB 149 at [19]. The applicant went on to indicate that he wished to marry and wanted to have more than one child which is not permitted under Chinese law, and did not want his children to be indoctrinated by the Chinese government and Communist Party: CB 149 at [19].
At the Tribunal Hearing the applicant said he could not return to China because the values advocated by the Chinese government were at odds with his own values, and that after living and studying in Australia the applicant had come to realise that he would be in confrontation with the Chinese government if he returned and this would lead to persecution under the dictatorship of the Communist Party: CB 150 at [20].
The applicant told the Tribunal about a work-related injury that he received in China whilst travelling to his employment in respect of which he received no compensation, and in relation to which he complained (to the President of the court concerned) about bias on the part of the judge who heard his case, whom the applicant says he saw, and photographed, having lunch with his employer, but which complaint he did not take further: CB 150 at [22]. The applicant remained in his job until he departed China and was not physically harmed, or threatened with physical harm, as a result of his pursuit of the court case or his comments about the judge: CB 150 at [22].
The Tribunal asked the applicant what specific harm he thought he might face if he returned to China now or in the foreseeable future and the applicant said that although he had no religious beliefs and had not been physically persecuted in the past his own values in life were at odds with those of the Communist Party in China: CB 150 at [23]. The applicant said:
a)“he lives in the same social/political environment as other Chinese citizens who have been identified as refugees. He compared himself with Liu Xiao Bo, Nobel Peace Prize recipient, and said he came from the same environment as Liu Xiao Bo. The Tribunal put to him that his own evidence is that he had not engaged in any activities in the past that had drawn the adverse attention of Chinese authorities, unlike Liu Xiao Bo. The applicant said that the only difference is the level or extent to which he has compromised his own values to remain in the environment in China for the purpose of self-protection and to avoid any unnecessary harm from the government”: CB 150 at [23]; and
b)that in the past he had chosen to restrain himself and abandon his aspirations, to be a lawyer and to have a family, in order to avoid harm at the hands of the Chinese government, and when asked by the Tribunal if he would continue to compromise his values in order to avoid harm if he returned to China the applicant said that he would probably do so: CB 150-151 at [23]-[24].
The Tribunal set out its findings and reasons as follows:
25.The applicant has stated that he fears he may suffer significant harm as a result of differences between his own values and that of the Chinese government. He was unable to explain exactly what these differences involved however, the Tribunal accepts that he is referring to differences of political opinion for the purposes of the meaning of refugee as defined in the legislation.
26.The applicant gave evidence that he never had any difficulties with the authorities in China prior to his departure. He did not openly express any political opinions that brought him to the attention of the authorities in China. He was able to obtain a passport without any difficulties. He does not have any religious beliefs that are banned in China. At the hearing he was unable to specify exactly what activities he may engage in if he were to return to China that would result in adverse attention from the authorities and possible harm to himself, other than to state he abandoned his aspirations to be a lawyer and have a family in order to avoid possible harm with the implication that to continue to do this would result in mental and/or emotional suffering.
27.Given the above evidence, the Tribunal is not satisfied that there are substantial grounds for believing the applicant has a well-founded fear of persecution for reasons of his political opinion or that, there are substantial grounds for believing that there is a real chance that if he returns to China he [will] suffer significant harm (having regard to the examples provided in s.91R(2) of the Migration Act) for reasons of his political opinions.
28.The Tribunal is also not satisfied that there is a real risk that he will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Migration Act) if he were to return to China now or in the foreseeable future.
29.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or in the alternative criterion in s.36(2)(aa). The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
30.There is no suggestion that the applicant satisfied s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
CB 151 at [25]-[30] (emphasis in original).
On the above bases the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 151 at [31].
Judicial Review Application – grounds
The Judicial Review Application contains the following grounds:
1.A relevant consideration was not taken into consideration under s 36(2A)(d) – the non-citizen will be subject to cruel or inhuman treatment or punishment.
(e) – the non-citizen will be subjected to degrading treatment or punishment.
2. Also under s.5H 1(a) – in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.
The applicant reiterated these grounds of review in his affidavit filed on 15 March 2016 in support of the Judicial Review Application.
Judicial Review Application – pre-hearing process
On 27 April 2016 the Court ordered that the applicant file and serve any:
a)amended application giving particulars of the grounds of application;
b)further affidavits; and
c)outline of submissions.
(“April 2016 Orders”).
The applicant did not file any further documents under the April 2016 Orders.
Judicial Review Application – hearing
The Judicial Review Application was heard on 28 February 2017. Notwithstanding his non-compliance with the April 2016 Orders, the applicant was given the opportunity to make oral submissions in support of his application. The applicant’s oral submissions can relevantly be summarised as follows:
a)that based on Australian laws he met the requirements to be a refugee;
b)that the Tribunal was wrong in its conclusions that the applicant did not have a well-founded fear of persecution if he was to return to China because it was inconsistent with the description that he gave;
c)that the Tribunal made a logical mistake;
d)that the international community had accepted quite a number of famous Chinese citizens as refugees, including the Nobel Peace Prize winner, Liu Xiao Bo, and said that if Liu Xiao Bo could be recognised as an international refugee then the applicant should be able to get the same result, and it was important to recognise that in China they had “implemented the political mind education” whereby “the communist party will make sure that you believe everything the party says or do are correct”: Transcript at page [6];
e)that he did not want to live in an environment where all government departments are controlled by communist party members and that to live in such an environment is persecution;
f)that in China the government “rapes public opinion”: Transcript at page [6], and that whilst in China he had tolerated this silently whereas people such as Liu Xiao Bo had fought back increasing their reputation as well as further physically harming them, which was just like a rape case, and it was a logical mistake to say that those who fought back are victims and that those who do not fight back are not victims;
g)he will be facing inhumane treatment if he returns to China; and
h)that the mistake in his case lies in the law and that cannot be used as a reason to reject his application because there had been a logical mistake, and that if Liu Xiao Bo and the Dalai Lama could be considered refugees then he fell into the same category, and that the only difference is that when they were raped they fought back and received more physical harm, but he realises that if he fights back it is useless and it will bring more harm to him and his family and therefore he kept silent.
The Minister filed written submissions and made oral submissions at hearing which can be summarised as follows:
a)the applicant seeks to have the Court undertake impermissible merits review by making different findings on the same facts and submissions which were before the Tribunal;
b)that whilst the Tribunal applied the test in relation to the complementary protection visa criterion, given the factual findings made by the Tribunal, it made no difference because the only logical conclusion following from the facts found was that the applicant was not entitled to a Protection Visa on Refugee Convention grounds; and
c)consequently, the Tribunal Decision was not affected by jurisdictional error.
Consideration
Jurisdictional error required
The Tribunal Decision is only liable to be set aside upon review by this Court if it involves jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Merits review
This Court, in undertaking judicial review of a migration decision, is not to engage in merits review of the decision of the administrative decision-maker, here the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 Brennan J.
The applicant’s grounds of review alleged that the Tribunal failed to consider a relevant consideration being ss.5H(1)(a) and 36(2A)(d) and (e) of the Migration Act. The Tribunal had regard to both those provisions. The abovementioned sections were referred to in the Tribunal Decision: CB 147 and 148 at [8]-[12], and s.36(2A) of the Migration Act was again referred to in the context of the Tribunal’s assessment of whether there was a real risk of significant harm if the applicant was to return to China now or in the foreseeable future: CB 151 at [28].
The applicant’s submissions indicate that the applicant seeks to have this Court re-determine the merits of his claim, because the applicant disagrees with the Tribunal Decision, and does so on the basis of the same submissions he had made to the Tribunal.
The grounds alleged by the applicant in the Judicial Review Application do no more than seek impermissible merits review, and do not establish jurisdictional error in the Tribunal Decision.
Was the wrong test applied – and could it make a difference?
The Minister, acting as a model litigant, quite properly raised, and conceded, that the Tribunal had used the wrong wording in considering whether to grant the Protection Visa under s.36(2)(a) of the Migration Act. The Tribunal said that it was not satisfied that there were “substantial grounds” for believing the applicant has a well-founded fear of persecution for reasons of his political opinion, or that there are “substantial grounds for believing that there is a real chance that if he returns to China he will suffer significant harm” (having regard to the examples provided in the former s.91R(2) of the Migration Act) for reasons of his political opinion: CB 151 at [27]. However, substantial grounds are only relevant to the consideration of whether the applicant ought to have been granted the Protection Visa under s.36(2)(aa) of the Migration Act and not s.36(2)(a) of the Migration Act. And, the Tribunal identified s.91R(2) where that section has been repealed, but which now appears in identical terms at s.5J(5) of the Migration Act: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Sch.2, items 7 and 12.
The Tribunal’s incorrect referral to s.91R(2) of the Migration Act, rather than s.5J(5) of the Migration Act, is easily resolved. The identification of s.91R(2) of the Migration Act rather than s.5J(5) of the Migration Act is inconsequential because the text of the sub-sections is identical, particularly where the Tribunal had set out the correct provisions earlier in, and as an attachment to, the Tribunal Decision: CB 147-148 and 152-154 at [8]-[12]. No jurisdictional error per se is established by the Tribunal’s incorrect reference to s.91R(2) of the Migration Act.
Otherwise, in relation to the use of “substantial grounds” as the test the Minister submitted that:
a)it was a matter of inopportune phrasing rather than the Tribunal actually applying the wrong test, and to find otherwise would be to read the Tribunal Decision too critically in search of error;
b)even if the Tribunal did apply the wrong test and commit jurisdictional error, the Court should not exercise its discretion to grant the relief sought by the applicant because the purported error could make no difference;
c)the Tribunal understood the task before it, and the findings in the Tribunal Decision demonstrate that the Tribunal entirely rejected the applicant's claim that he was at risk of any harm, and did so because of the nature and paucity of the applicant's claims and the lack of evidence to support them: CB 151 at [25] and [26]; and
d)with respect to the use of the words “substantial grounds” in the Tribunal’s consideration of applicant’s claim under s.36(2)(a) of the Migration Act whilst the Tribunal should not have used the phrase in that context, the Tribunal Decision otherwise indicates that:
i)the correct law has been considered: CB 147-148 and 152-154 at [8]-[12];
ii)the Tribunal otherwise used the correct law in the relevant parts of the Tribunal Decision: CB 151 at [27] and [28];
iii)the Tribunal’s questions put to the applicant at the hearing also indicate the correct law was applied: CB 150-151 at [20]-[24]; and
iv)in any event, the applicant’s own evidence, or lack thereof, as to any actual harm or profile that would suggest possible harm properly founded the basis of the Tribunal’s Decision to reject the applicant’s claims, so any error by the Tribunal would not have changed its decision and relief should be denied.
Administrative decisions should be read fairly and holistically with each constituent part understood in context: Shrestha v Minister for Immigration & Anor [2013] FCCA 710 at [37] per Judge Nicholls. It is trite law that the Tribunal Decision is not to be examined critically in search of error: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Sami v Minister for Immigration & Citizenship [2013] FCAFC 128; (2013) 139 ALD 1 at [17] per Jagot, Barker and Perry JJ, and therefore particular or individual paragraphs of the Tribunal Decision ought not to be read and examined critically in isolation from the remainder, or the substance, of the Tribunal Decision. And, even if it can be said that the Tribunal applied the incorrect test, that in itself would not necessarily amount to a jurisdictional error in circumstances where “… the grant of relief could not possibly make a difference to the Tribunal’s eventual deliberations”: SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [96] per McKerracher J (“SZOOR”), citing Stead v State Government Insurance Commission (1986) 161 CLR 141; (1986) 60 ALJR 662; (1986) 67 ALR 21; CLR at 145-147 per Mason, Wilson, Brennan, Deane and Dawson JJ (“Stead”); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 (“Aala”); NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171; (2005) 88 ALD 257.
In Aala it was observed that the occasion for the use of the exercise of the discretion to refuse relief in cases of jurisdictional error is rare: Aala at [51]-[53] per Gaudron and Gummow JJ (with whom Gleeson CJ agreed: at [5]). For the Court to predict an inevitable outcome (to borrow the language from Aala at [80] per Gaudron and Gummow JJ) necessitates a surety that the predicted outcome is “crystal clear” (to borrow the language of the learned authors of Aranson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th Edn) (Law Book Co, 2017) at [17.150]), and that is so whether a court adopts a backward or forward looking approach: as to which see Kabir v Minister for Immigration & Citizenship [2010] FCA 1164; (2010) 118 ALD 513 at [38]-[55] per Siopis J. It matters not that a re-hearing by the Tribunal might be futile, what matters is whether a court cannot be certain that it will be futile: Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363; (2007) 94 ALD 559 at [53] per Besanko J, that is, to return to SZOOR at [96] per McKerracher J “whether … the grant of relief could not possibly make a difference” to the eventual outcome before the Tribunal.
It is necessary to determine this issue to refer to the relevant statutory provisions. Section 36(2)(a) and (aa) of the Migration Act provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
Section 36(2)(a) of the Migration Act relates to the protection obligations arising because the person is a refugee under the terms of the Refugees Convention, while s.36(2)(aa) of the Migration Act provides that protection obligations arise because there are substantial grounds for the Minister believing that as a necessary and foreseeable consequence of an applicant being removed from Australia there “is a real risk that the non-citizen will suffer significant harm”.
Article 1 of the Refugees Convention defines a “refugee” as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
What is meant by “well-founded fear of persecution” in the Refugees Convention is qualified by s.5J of the Migration Act which provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of thatparagraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.
It is also relevant to note that s.36(2A) and (2B) of the Migration Act provide as follows:
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The Tribunal accepted that what was being alleged by the applicant was a well-founded fear of persecution by reason of his political opinion: CB 151 at [25].
The Tribunal was required to consider whether there was a “real chance” that the applicant would be persecuted by reason of his political opinion, and whether the persecution involved “serious harm”: Migration Act, s.5J(1)(a) and (4)(b), and not “significant harm” which was the test applied by the Tribunal: CB 151 at [27]-[28].
The Tribunal was also required to consider whether the applicant was able to take reasonable steps to modify his behaviour so as to avoid a real chance of persecution, other than a modification that would “conceal his … true political beliefs”: Migration Act, s.5J(3)(c)(iii). It is arguable that the Tribunal did not do this. It did consider whether the applicant had modified his behaviour, and would modify his behaviour if returned to China, which the applicant acknowledged that he would by subduing his political opinion, but the Tribunal does not appear to engage with the question of whether the applicant has a well-founded fear of persecution because he is “require[d]” to conceal his political beliefs. It does not appear that the Tribunal found that the applicant did not have the political beliefs he asserted, albeit asserted perhaps vaguely or inexactly: CB 151 at [25]-[26].
There is evidence which suggests that the applicant was engaging in conduct which had the effect of concealing his political beliefs, and thereby might have had a well-founded fear of persecution for the purposes of s.5J(3)(c)(iii) of the Migration Act. That would have then required the Tribunal to consider whether the persecution involved “serious harm”: Migration Act, s.5J(4)(b), and not “significant harm” as was considered by the Tribunal, “serious harm” and “significant harm” being different standards of harm, as is evident from the non-limiting instances of:
a)“serious harm” set out in s.5J(5) of the Migration Act; and
b)“significant harm” set out in s.36(2A) of the Migration Act.
In this case, a consideration of the issue of “serious harm” would, at the very least, have necessitated a consideration of the evidence as to whether there was “a threat to the … [applicant’s] liberty”. The applicant gave evidence, arguably of a general kind, of what might, on that evidence, be said to be authoritarian suppression by the Chinese authorities:
a)that affected his mental health and made it “almost impossible if you want to be yourself”: CB 149 at [18];
b)was “indoctrination” (albeit by reference to his children); and
c)that his values (which the Tribunal accepted was seemingly a reference to his political opinion) were at odds with those of the Chinese government and would lead to “confrontation” if he did not compromise those values in order to avoid harm: see CB 149 at [19]; CB 150 at [20] and CB 150-151 at [23]-[24].
The Court is cognisant of what was said by the High Court in Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”) where the High Court indicated that:
a)substituting “the real chance” test for the Refugees Convention term “well-founded fear” was “to invite error”: Guo, CLR at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, and that a well-founded fear is one with a “real substantial basis for it”, which “may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate”: Guo, CLR at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, and that, critically in Guo at CLR at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ the High Court then went on to say as follows:
But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.
b)in relation to the predictability of future events which might give rise to a real chance of serious harm there were cases where “the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded”: Guo CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
It is plain that in an assessment of whether or not a person has a well-founded fear of persecution by reason of there being a real chance that they will suffer serious harm can be a complex and multi-faceted exercise. In the circumstances of this case, the Court is not confident that it ought to form a view that a re-hearing by the Tribunal would certainly be futile. Although there was said to be a paucity of evidence by the applicant, and much of his evidence was vague, there are elements of that evidence (as set out at [39] above) which might arguably warrant further consideration by the Tribunal if the correct test were to be applied. Thus, even if it is still likely that there will not be a different result before the Tribunal (and that is no doubt possible), the Court cannot be certain that there will not be a different result upon a re-hearing if the correct test is applied to the evidence, either as it presently stands, or as it might become if further evidence is put before the Tribunal.
The High Court’s observations in Guo set out above, taken together with the possibly complex and multi-faceted nature of the considerations to be undertaken by the Tribunal, particularly by reference to in s.5J of the Migration Act, together with the nature of the evidence as referred to by both the Court: see [39] above, and the Tribunal: see [5]-[12] above, simply reaffirms the Court’s view that, a jurisdictional error in the Tribunal Decision having been established, it is not appropriate for the Court to exercise its discretion to refuse relief in this case, and that is because it cannot be certain that a re-hearing by the Tribunal would be futile.
Conclusion and orders
The Court has concluded that the Tribunal Decision was affected by the jurisdictional error identified by the Minister, namely the application of the wrong test: see [25] and [36]-[37] above. The Court having determined that it is not appropriate to exercise its discretion to refuse relief in this case, it follows that prerogative relief ought to be granted to the applicant. There will therefore be orders that a writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal made on 16 February 2016, and that a writ of mandamus issue requiring the Tribunal to re-hear the application for review made by the applicant on 10 December 2015.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 21 July 2017
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