ARZ18 on behalf of ASB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 270
•5 March 2020
FEDERAL COURT OF AUSTRALIA
ARZ18 on behalf of ASB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 270
Appeal from: ARZ18 on behalf of ASB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2507 File number: NSD 1530 of 2019 Judge: FOSTER J Date of judgment: 5 March 2020 Legislation: Migration Act 1958 (Cth), s 424A and s 438 Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Date of hearing: 19 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 35 Counsel for the Appellant: The appellant’s litigation representative, ARZ18, appeared in person on behalf of the appellant Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 1530 of 2019 BETWEEN: ARZ18 ON BEHALF OF ASB18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
5 MARCH 2020
THE COURT ORDERS THAT:
1.The Appeal be dismissed.
2.The appellant’s litigation representative pay the first respondent’s costs of and incidental to the Appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FOSTER J:
The appellant appeals from a decision of the Federal Circuit Court of Australia by which his application for judicial review of a determination of the Administrative Appeals Tribunal (Tribunal) was dismissed (ARZ18 on behalf of ASB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2507).
The appellant claims to be a citizen of China. He was born in late 2013 in Australia. He is presently six years of age.
By order made on 5 November 2019, the appellant’s father, ARZ18, was appointed as the litigation representative of the appellant.
Both of the appellant’s parents were born in 1990 and are citizens of China. ARZ18 first arrived in Australia in 2007. Thereafter, he met and married the appellant’s mother who first arrived in Australia in 2008.
The appellant has an older sister who is now eight years of age. She was also born in Australia.
On 5 August 2014, the appellant applied for a Protection (Class XA) (subclass 866) visa (protection visa).
In 2009, each of his parents applied for a protection visa. Each of those applications was refused by a delegate of the relevant Minister and those refusal decisions were confirmed by the Refugee Review Tribunal after a review of the delegate’s decision was sought by each of them.
In addition, a similar application made on behalf of the appellant’s sister was also refused.
THE APPELLANT’S CLAIMS FOR PROTECTION
In his application for a protection visa, the appellant made the following claims:
I was born in Australia. Both my parents, [names] are PRC citizens in Australia. My sister [name] was also born in Australia.
My parents as well as my sister have previously applied for protection visas, as they believe they must be subjected to persecution or significant harm if they return or go to China. Unfortunately their applications have not been decided fairly and squarely.
Just like my parents and sister, I must be subjected to persecution or significant harm if I am forced to go to China. I have to seek protection in Australia and sincerely wish that my application could be considered impartially and properly.
Both my parents are devout Christians and members of the Local Church (a.k.a. shouters) which is regarded as evil cult by the PRC authorities. Due to their Christian beliefs, my parents have suffered a lot, but they always love and serve the Lord Jesus and actively make their contribution to the Local Church. It is no doubt that my parents must be subjected persecution or significant harm if they return to China.
However my parents’ application for protection visas, including my sister’s application, have unfairly been refused. It is particularly unacceptable that the refusal decisions were mainly based on my parents’ delay in seeking protection in Australia. As a matter of fact, many reasons could lead my parents to delay in lodging their protection visa applications. For example, when my parents arrived in Australia, my father was still under age my mother was just over 18 years old. They might be too young to understand what they should do in such a strange land. Another example, my parents were born and grew up in China, which have different language different culture as well is different political and legal system. Therefore they had to face one difficulty after another after they came to Australia. Furthermore, it is because of my parents’ genuine Christian beliefs that they might not be willing to use their beliefs for their own purposes.
My parents have been harmed in China due to their Christian beliefs. If I go to China with my parents, then I must be subjected to persecution or significant harm not only because of my parents Christian beliefs but my own status as a black child.
As it has stated in my sisters protection Visa application there is no genuine freedom of religious belief in China at all. Although the Constitution provides for freedom of religious belief, on the surface the Chinese government’s respect for and protection of the rights to religious freedom is deteriorated. As we have emphasised repeatedly, my parents are faithful Christians who have devoted themselves into the Local Church. My sister and I must therefore become major activists in the Local Church. As a result, we must inevitably be subjected persecution of significant harm owing to our Christian beliefs if we are in China.
Owing to birth control policy and the system of household register (hukou) in China, my parents have to pay a fine (social compensation fee) for me. My sister and I have to apply for household registers. As it has stated in my sister’s application, my parents are really in a very difficult position on one hand. On the other hand, the Chinese officials, including the police at the Public Security Bureau (PSB) and the local police station, are extremely corrupt. They must fully take this opportunity to extort money from my parents, as they must think that my parents must make a lot of the money in the overseas. If we go to China, it will definitely be impossible for my parents to afford the fine and satisfy those greedy Chinese officials. As a result both my sister and I will be unable to obtain our household registers, and we will become black children, and we must be arbitrarily deprived of our basic human rights we must be unable to survive in China eventually.
If my parents or my sister return or go to China they must be harmed or mistreated in humanly by Chinese officials, including the police from the PSS and the police station as well is the officials from the religious affairs bureau. Unfortunately, the applications of my parents and my sister for protection visas have not been decided fairly and squarely.
Just like my parents and sister, I must also become a victim of persecution if I go to China. I must be harmed or mistreated inhumanly by the Chinese officials.
When my father applied his protection visa in April 2009, my father was in custody at Villawood Immigration Detention Centre (Villawood IDC). He was assisted by a female migration agent who provided service under the immigration advice assistance scheme. The IAAAS agent was unable to speak any Chinese, and my father had to communicate with her through a male interpreter. However my father’s evidence had not been translated or interpreted accurately and properly even though my father had provided the IAAAS agent his statement, which my father had prepared in Chinese, to detail main reasons why my father had to seek protection in Australia. Also my father did not realise the mistakes in his protection visa application which had been prepared by the IAAAS agent in English. Therefore in the hearing before the Refugee Review Tribunal in August 2009, my father stated repeatedly that he could not understand why there were so many mistakes in his protection visa application. Furthermore in the RRT hearing in August 2009, the interpreter was unable to interpret specific religious terms in relation to the Local Church. It is for all of these reasons that my father’s application was unfairly refused.
Both my parents have always attended the Local Church in Sydney actively. They have insisted on doing so even though their own applications have unfairly been refused. This is strong evidence that my parents are genuine Christians of the Local Church and that their conduct is obviously not for the purpose of strengthening their claims to be refugees. Unfortunately, the RRT failed to consider it fairly and properly when the RRT decided my sister’s application.
The RRT failed to impartially consider my parents difficult situation particularly independent evidence given by two witnesses regarding my parents financial hardship in Australia. My parents must be unable to pay social compensation fees or satisfy those greedy Chinese officials if we have to go to China. As a result my sister and I must become black children.
My parents are faithful Christians who have devoted themselves into the Local Church which is regarded as evil cult by the Chinese government. Therefore, if my parents return to China, the PRC authorities will never ever protect them. On the contrary, my parents must be subjected to persecution or significant harm in China.
I have to emphasize once more that my parents’ protection visa application have not been decided fairly and squarely.
If my sister and I go to China, our parents have to pay social compensation and also to satisfy those corrupt and particularly greedy Chinese officials when we apply for our household registers. As I have stated repeatedly, my parents will be unable to afford all of these owing to their financial hardship. Therefore, my sister and I must be unable to obtain our household registers. We will inevitably become “black children”. The Chinese government will never ever protect us. Instead, we must be arbitrarily deprived of our basic human rights. We must be subjected to persecution or significant harm in China.
Unfortunately, my sister’s protection visa application has been refused unfairly. In such a situation, I have to sincerely wish that my application could be considered impartially and properly.
THE DELEGATE’S DECISION
A delegate of the Minister interviewed the appellant’s father on 10 June 2015. On 17 July 2015, the delegate refused to grant the protection visa to the appellant. The delegate found that:
(a)The appellant would not be an unregistered child in the future and therefore would not be discriminated against or persecuted on that basis by the Chinese authorities;
(b)The appellant was not and never has been a member of any local Christian church; and
(c)The delay in the appellant’s lodging his application for a protection visa indicated that the appellant did not have a genuine fear of persecution if he were to go to China.
THE TRIBUNAL’S DECISION
On 12 August 2015, the appellant applied to the Tribunal for review of the delegate’s decision.
On 6 June 2017, the appellant’s father appeared before the Tribunal to give evidence and to present arguments in support of the appellant’s application for review.
On 7 September 2017, the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (the Act). The appellant’s father, in his capacity as the appellant’s litigation guardian, responded to that correspondence on 20 September 2017. The appellant’s father provided the Tribunal with a statutory declaration made by him and other documentation.
On 25 January 2018, the Tribunal affirmed the delegate’s decision.
The primary judge adequately summarised the substance of the Tribunal’s decision at [8]–[27] of his Reasons for Judgment. At those paragraphs, the primary judge said:
Tribunal decision
Whether the applicant’s father was involved in Local Church in China
The Tribunal found that the applicant’s father’s evidence in relation to when he and his mother were detained and in relation to assisting his mother prepare pamphlets was inconsistent. The Tribunal was of the view at [51] that whether or not it accepted the submission turned on the applicant’s father’s overall credibility.
Whether the applicant’s father attended the Local Church in Australia
The Tribunal found at [53] that the applicant’s father had made minimal effort to align his behaviour with his alleged Local Church beliefs. The Tribunal found that the applicant’s father failed to articulate refugee claims at any of the three interviews held in March 2009, the Tribunal noted at [54] that his failure to do so, combined with his delay in lodging his protection visa application was not consistent with his protection visa application dated 6 April 2009 stating that he was a Christian and that he had been detained in China in September 2006.
The Tribunal found that the applicant’s father’s evidence did not suggest that he had, as was claimed in the applicant’s application, always actively attended the Local Church in Sydney. The Tribunal also found at [54] that the applicant’s father’s evidence did not suggest that he had participated in the Local Church in Australia in a way that was consistent with his claim that he was a genuine member of the Local Church.
The Tribunal accepted that the applicant’s father met some “Shouters” in the detention centre, but was not satisfied that the applicant had attended the Local Church as claimed. The Tribunal accepted that the applicant’s father may have attended gatherings in Blacktown, but noted that the migration agent wrote to the Minister’s Department on 16 June 2015 stating that the church would not issue a reference. The Tribunal found at [55] that the applicant’s father’s statement that he and his wife did not want to trouble their church elders for further references, disingenuous and was not satisfied that if they were regularly attending the Local Church that they would not approach the church elders for a reference.
At [56], the Tribunal was not satisfied that the applicant’s father was credible. Neither was the Tribunal satisfied that the applicant’s father was telling the truth when he stated that his was a Local Church member in China, or that he and his mother were detained, or helped his mother prepare pamphlets or that he and his family had been harmed in China due to their Christian beliefs.
Whether the applicant’s mother was involved with Local Church in China
The Tribunal found the applicant’s mother’s evidence in relation to her alleged involved in the Local Church in China at the 2 June 2009 hearing vague and minimal. The Tribunal further found at [58] that the applicant’s mother’s evidence in relation to what happened during a raid and when she was allegedly detained was inconsistent with the applicant’s grandmother’s evidence.
At [59], the Tribunal did not accept that the applicant’s mother was a Local Church practitioner in China or that she attended the Local Church in China, neither did it accept that she or her family had been harmed in China due to their Christian beliefs.
Whether the applicant’s mother was involved with Local Church in Australia
The Tribunal found at [60] that the applicant’s mother’s evidence was inconsistent with the applicant’s grandmother’s evidence, and that the delay of the applicant’s mother to lodge her protection visa application was not consistent with her claims that she could not return to China due to her and her family’s involvement in the Local Church.
The Tribunal was not satisfied at [62] that the applicant’s mother had attended the Local Church in Australia as claimed.
The Tribunal did not find that the applicant’s father was credible and did not accept that either of the applicant’s parents were Christian or genuine Local Church members. It followed that at [63] the Tribunal did not accept that the applicant’s parents delayed their protection visa applications because they were not willing to use their beliefs for their own purposes.
The Tribunal accepted that the applicant’s mother may have been baptised and that the applicant’s parents may have attended the Local Church in Sydney on limited occasions. However the Tribunal found that they had done so for the purpose of their refugee claims. At [64], the Tribunal did not consider that their limited attendance at the Local Church would be known to Chinese authorities.
The Tribunal did not accept the submission that the applicant must also be, or become a major activist in the Local Church or that he had been imputed with such a religious opinion. The Tribunal did not accept at [65] that the applicant’s parents would be arrested on return and that there would be no one to look after the applicant.
Social compensation fee/Hukou
With reference to country information, at [66] the Tribunal did not accept that the applicant could not obtain registration without his parents paying any social compensation fees.
The Tribunal accepted that the applicant’s parents had not reached marriageable age as defined in China at the time of their marriage in Australia in 2009 and that this may cause them some difficulty in having that marriage registered or recognised in China. The Tribunal noted that the applicant was born on 7 December 2013 and the Tribunal found at [67] that both parents were above marriageable age as defined in Chinese law. The only breach of the planning laws was that they may be required to pay a fine for having the applicant out of wedlock.
The Tribunal found that the likely scenario that the applicant’s parents would have to pay something between 39,868 RMB and 59,802 RMB, the Tribunal did not accept that the applicant’s parents would be required to pay more as Christians as it did not accept they were Christians. The Tribunal also found at [69] the claim that they would have to pay more due to being overseas speculative and not foreseeable.
At [71], the Tribunal was not satisfied that the payment of the social compensation fee for the applicant would affect the family’s capacity to subsist so that the applicant would face a real chance of harm with reference to evidence showing that the applicant's parents were resourceful.
The Tribunal was therefore not satisfied at [73] that the applicant satisfied the criterion in s.36(2)(a).
Turning to complementary protection, the Tribunal was not satisfied that the applicant’s parents had been telling the truth about their alleged persecution in China or that they are genuine Local Church members or that their exposure to the Local Church in Australia would be known to the Chinese authorities or that the applicant must also be or become a major activist in the Local Church or that he has been imputed with such a religious opinion. The Tribunal noted that it had also rejected the claim that the applicant would not be registered or that the applicant’s parents would not pay the social compensation fee or make arrangements to pay the fee through instalments. The Tribunal also rejected at [74] the claim that payment of this fee would affect the family’s capacity to subsist.
The Tribunal was not satisfied at [75] that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm.
Accordingly the Tribunal affirmed the decision under review.
THE PROCEEDINGS IN THE CIRCUIT COURT
The grounds of judicial review relied upon by the appellant in the Circuit Court were as follows:
My husband … attended a hearing before the Administrative Appeals Tribunal (Tribunal) in relation to my [son’s] … application on 6 June 2017. He was requested to respond or comment on particulars of the information given by the Tribunal on 7 September 2017. He made his response to and comments on the information on 20 September 2017. The Tribunal made her decision on 25 January 2018. During the 4 month period from 20 September 2017 to 25 January 2018, the Department of Foreign Affairs and Trade (DFAT) issued is up to date country report in relation to current situation in China (http:/dfat.gov.au/about-us/publications/documents/country-information-report-china.pdf) on 21 December 2017, and my husband and I are sure that the Tribunal must have received the up-to-date DFAT report. However, the Tribunal failed to consider such an important report while she made her decision on the review application of my son. It is apparently unfair.
Regarding to my [husband’s] … church activities in China, there is no evidence that the Tribunal has considered the evidence, particularly the documents, which my husband submitted to it on 7 September 2017.
Regarding to our church activities in Australia, the Tribunal has made her finding arbitrarily and unfairly. Her significantly relied on her assumption.
Both my husband and I are Christians and active member of the Local Church (a.k.a. “Shouters”). According to the most recent [DFAT] report, my husband and I will be subjected to persecution if we return to China, and our children, including …, will deeply be implicated by our cases and suffer from significant harm.
(errors in original)
At [32], the primary judge held that there was no substance in any of the grounds of review specified in the appellant’s Circuit Court Application for Judicial Review. He went on to explain why at [33]–[36] where he said:
The first ground claims that the Tribunal failed to consider the 2017 DFAT Country Report for China, but the Tribunal quotes from this Report at [39]. There is no basis to infer that it has not considered it. This ground fails.
The second ground claims the Tribunal did not consider the applicant’s father’s statement of 7 September 2017. Assuming this refers to the statement at CB 434-438 dated 20 September 2017 it was quoted at length by the Tribunal at [37]. Again, there is no basis to infer that it has not considered it. This ground fails.
The third ground claims that the Tribunal’s findings concerning (presumably) the applicant’s parents’ Local Church practice in Australia (summarised above) was arbitrary and unfair. In the absence of the applicant identifying some “extreme” illogicality with the Tribunal’s findings within the principles in CQG15 v Minister for Immigration [(2016) 253 FCR 496] at [59]–[61], this ground must fail.
The fourth ground claims the applicant’s parents are Local Church practitioners and will be persecuted in China, and the applicant would be deeply implicated and suffer serious harm. However the Tribunal found otherwise and this ground as stated merely seeks merits review and so must fail.
The primary judge then went on to consider the significance of four purported certificates issued by a delegate of the Minister pursuant to s 438 of the Act. His Honour considered that the issues raised by those purported certificates constituted the only issues of substance in the case before him.
At [37]–[42] of his Reasons, the primary judge said:
The non-disclosure certificates
The question of the purported non-disclosure certificates was raised by the Minister and required reasonably close consideration. I took into account that the applicant, represented only by his father as his litigation guardian, was in no position to address the technicalities of the legal issues arising. As noted in the Minister’s submissions, this case falls to be considered in the light of the decision of the High Court in SZMTA. The Minister concedes that all four certificates in issue are invalid. The Minister also concedes that there is no evidence that any of the certificates were raised with the applicant by the Tribunal.
For his part, the applicant’s father said from the bar table that he had not seen previously either the certificates or the documents exhibited to Ms Noakesmith’s affidavit. I agree with the Minister’s submissions on the issue of principle.
The High Court has held that the issuing of an invalid s.438 certificate to the Tribunal is a breach of a limitation on the statutory task of the Tribunal, but will not establish a jurisdictional error unless the breach is material [SZMTA at [44]]. Similarly the non-disclosure of a certificate is a breach of procedural fairness, but again this must be material to constitute a jurisdictional error [SZMTA at [38], [72]]. That requires that the applicant satisfy the Court that there is a realistic possibility of a different outcome if the Tribunal had had taken into account the material covered by the certificates [SZMTA at [45]–[48]].
Counsel for the Minister and I reviewed the documents exhibited to the affidavit. For the most part, they are internal communications relating to matters of general administration concerning the detention of the applicant’s parents, but they also include documents relating to a request for the Minister to exercise his power under s.48B of the Migration Act and also a request for the Minister to exercise his power under s.417, both in relation to the applicant’s parents.
These issues arose following the decision of the former Refugee Review Tribunal concerning the protection claims of the applicant’s parents and prior to the consideration of the applicant’s claims by the Tribunal. The claims by the applicant necessarily depended upon the claims by his parents. Some of those claims appear in the documents purportedly covered by the certificates in the context of the possible exercise by the Minister of his discretionary powers. That provides some passing contextual relevance of the documents to the decision of the Tribunal in issue.
None of the documents are identified or referred to by the Tribunal in its decision. I infer from that that the Tribunal did not consider any of the documents in reaching its decision. In the context of this case, I conclude that none of the documents is material to the outcome of the review before the Tribunal. It follows that, while an error of law was made by the Tribunal in failing to disclose the certificates or the documents relating to them, that error does not go to the Tribunal’s jurisdiction.
In the end, the primary judge held that the Tribunal’s decision was not vitiated by any jurisdictional error. Accordingly, he dismissed the appellant’s Application for Judicial Review and ordered the appellant’s father to pay the Minister’s costs of and incidental to that Application.
THE PROCEEDINGS IN THIS COURT
By Notice of Appeal filed in this Court on 24 September 2019, the appellant appealed the decision of the Circuit Court dismissing his application for judicial review of the Tribunal’s decision. In his Notice of Appeal, the appellant raised the following three grounds:
1.The Federal Circuit Court erred in law when it reached a decision that is not reasonably consistent with the materials.
Particulars
i)His Honour incorrectly determined the Tribunal’s breach of obligations with respect to invalid s.438 certificates to be immaterial to the outcome.
ii)His Honour misrepresented the information contained in the relevant documents and underplayed their influence over the Tribunal’s decision.
iii)The relevant documents contain crucial information that will inevitably affect the Tribunal’s decision making process even if the Tribunal did not explicitly reference them.
2.The Federal Circuit Court erred in law when it reached a decision based on a mischaracterisation of my claims.
Particulars
i)His Honour incorrectly referred to my claims regarding the lack of references from my church. It was not because “[I] did not want to trouble [my] church elders”. I made the explanation that I had already obtained references from my church in my own application prior. I also obtained witnesses who were willing to support me in person. However, their efforts were ultimately futile. Hence, I saw no reason to repeat the process in my son’s application.
3.The Federal Circuit Court erred in law as there is apprehended bias on the decision in relation to my application for a Protection visa owing to the reasons listed above.
By ground 1, the appellant challenged the primary judge’s analysis and conclusion concerning the four certificates issued pursuant to s 438 of the Act.
By ground 2, the appellant sought to raise a factual challenge to a finding of the Tribunal (referred to at [11] of the primary judge’s Reasons) and thus sought to raise on appeal in this Court merits review of the Tribunal’s decision. This is impermissible with the consequence that ground 2 must be rejected.
By ground 3, the appellant alleged that the primary judge was guilty of apprehended bias in dealing with his judicial review application. The only material relied upon in support of that contention is the material specified in grounds 1 and 2 of his Notice of Appeal. That material is not capable of demonstrating apprehended bias on the part of the primary judge with the consequence that ground 3 must also be rejected.
Accordingly, as was the case before the primary judge, the only issue of substance raised in the appeal to this Court is the appellant’s contention in respect of the four certificates issued by a delegate of the Minister pursuant to s 438 of the Act (ground 1 in the appellant’s Notice of Appeal).
The appellant’s father appeared at the hearing of the appellant’s appeal and made oral submissions in support of the appellant’s case. No written submissions were filed on behalf of the appellant.
At the outset, the appellant’s father sought an adjournment of the hearing of his son’s appeal on the ground that he was trying to get a lawyer or was waiting for a lawyer to take on his son’s case. He said that the lawyer needed time to read the material with which he had been briefed. He said that he needed two weeks. When pressed a little, the appellant’s father said that he had found a suitable lawyer in November and was waiting for that person to read the materials sent to him and then be in a position to represent his son. Ultimately, the appellant’s father said that the person with whom he had been dealing was a migration agent and not a lawyer. He said that he had asked his migration agent to find him a lawyer, which he had apparently done.
On the day of the hearing of the appeal, I refused the appellant’s adjournment application. As I understood the appellant’s father’s submissions, he had retained a lawyer at the behest of his migration agent and had been waiting since November for that lawyer to read the material with which he had been briefed. I considered that the appellant’s father had had more than enough time to ensure that the lawyer whom he had retained was properly briefed and was in a position to proceed on the day that his son’s appeal had been fixed for hearing. It seemed to me that the responsibility of ensuring that the appellant was properly represented rested with his father. His father had failed to discharge that responsibility with the consequence that the hearing of the appeal should proceed.
The appellant’s father then submitted that the primary judge should have told him that the validity and use that would be made of the s 438 certificates were critical issues in the case but had failed to do so. He submitted that the documents covered by the certificates may have had an impact on his character and may have given the primary judge a bad impression of his character. He argued that these potential consequences of the withholding of the material covered by the certificates may have had an adverse impact on his son’s case. He also submitted that he should have been told by the Tribunal that there were s 438 certificates in existence but he had not been informed of that fact.
In reply to the submissions of the Minister, the appellant’s father repeated his concerns about the non-disclosure of the certificates issued under s 438 of the Act and also referred to the subject matter of ground 2 (the question of the significance of the absence of references from his local church). He also argued that his son’s case had not been dealt with fairly and went on to submit that his own case, his wife’s case and his daughter’s case had all not been dealt with impartially.
The Minister relied upon a Written Submission dated 5 February 2020 supplemented by brief oral submissions made by his Counsel.
In respect of grounds 2 and 3 raised in this Court, the Minister submitted that neither ground had been raised below and should not be permitted to be raised for the first time on appeal to this Court. While this submission is correct, I have rejected grounds 2 and 3 upon the basis that there is no substance in either of them rather than on the more technical basis urged by the Minister.
As far as the first ground of appeal is concerned, the Minister submitted that none of the documents covered by the certificates was material within the principles explained by the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [45]–[48] such that there was a realistic possibility that the Tribunal’s decision could have been different (ie favourable to the appellant) if it had taken those documents into account. The Minister submitted that it is for the appellant to explain why his Honour was wrong in the conclusions which he reached as to the materiality of the certificates and further submitted that the appellant bears the onus of proving materiality. The Minister submitted that the appellant had not established why any of the documents covered by the certificates were material and thus had failed to discharge the onus which he bore in this respect. I note that the documents covered by the certificates were included in the Appeal Book in this Court and that the primary judge carefully considered those documents before making the observations which he made at [37]–[43] of his Reasons.
The submissions made on behalf of the Minister to which I have referred at [33] above are correct and I accept them. In addition, it is important to remember that the material which was the subject of the certificates in the present case was material in which the parents’ claims for protection were repeated. Their claims for protection based upon their Christian beliefs and participation in the local church in China were ventilated in considerable detail in the material before the Tribunal in the appellant’s case in any event and were considered by the Tribunal. There was nothing in the documents covered by the certificates that materially added to the material that was considered by the Tribunal in respect of the claims made by the parents. The material covered by the certificates merely repeated the parents’ claims. They added nothing of substance.
For all of the above reasons, I do not consider that the appellant has made out any of the grounds of appeal raised by him in this Court. Accordingly, his appeal must be dismissed with costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 5 March 2020
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