Bcu17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 655
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BCU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 655
File number(s): MLG 532 of 2017 Judgment of: JUDGE A KELLY Date of judgment: 16 August 2022 Catchwords: MIGRATION – Application for judicial review of decision Administrative Appeals Tribunal – Protection (Class XA) visa – where applicants originate from Xinjiang autonomous region of China – where second and third applicant rely on first applicant’s claims for protection – where first applicant is a Muslim of Hui ethnicity – where first applicant claimed he suffered severe discrimination and could not practice religion without persecution – where applicant claimed he would face a real risk of significant harm if returned to China – where Tribunal not satisfied applicant was detained in 2008 or 2009 or suspected by authorities to be involved with terrorists or convicted of any offence – where Tribunal not satisfied applicant’s claims were credible – where Tribunal identified inconsistencies in claims made by applicant – applicable principles – whether Tribunal’s failure to assess a claim constitute a failure to review – whether Tribunal failed to comply with mandatory procedures as set out in ss 424AA and 424 of the Migration Act 1958 (Cth) – whether Tribunal failed to consider risk of harm from violence in Xianjing Province – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 422B, 424A, 424AA, 425, 474, 476 Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 256 FCR 593
AWT15 v Minister for Immigration and Border Protection [2017] FCA 512AYY17 v Minister for Immigration and Border Protection (2018) 251 FCR 503
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124Craig v South Australia (1995) 184 CLR 163, 175
DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290
DQU16 v Minister for Immigration (2021) 95 ALJR 352
EPJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 193
EXT20 v Minister for Home Affairs [2022] FCAFC 72
Hossain v Minister for Immigration (2018) 264 CLR 123Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Waraich v Minister for Home Affairs (2021) 286 FCR 45
Division: Division 2 General Federal Law Number of paragraphs: 102 Date of hearing: 8 September 2021 Place: Melbourne Counsel for the Applicants: Dr A. McBeth Solicitor for the Applicants: Clothier Anderson & Associates Counsel for the First Respondent: Mr J. Barrington Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 532 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BCU17
First Applicant
BCV17
Second Applicant
BCW17
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
16 AUGUST 2022
THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.
3.The amended application dated 17 August 2021 be dismissed.
4.The first applicant pay the costs of the first respondent fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
KELLY A, J
Introduction
By amended application dated 17 August 2021, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 February 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant the applicants Protection (Class XA) visas (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
The application should be dismissed. No error is disclosed in relation to the manner in which the Tribunal considered the first applicant’s claim to being at risk of persecution by reason of his religious beliefs, whether alone or in combination with risks faced as a result of concerns held by Chinese authorities that Islamist terrorists posed a threat in China. Nor do I discern any error in the manner in which the Tribunal put to the first applicant (applicant) its concerns respecting a “notice of detention” that he had supplied for the hearing. Equally, no error was made by the Tribunal in its treatment of the applicant’s claim to complementary protection.
Background
The background is drawn from the parties’ submission together with my examination of the materials in the court book and documents filed in this Court.
The applicants, a family comprising of two adults and their child, are citizens of China who are of the Muslim faith from the autonomous region of Xinjiang and ethnically, identify as Hui. The applicant, now aged 50, is married to the second applicant, aged 54 and they are parents to the third applicant who was born on 30 April 2008.
Between 2006 and 2013, the applicant travelled on various occasions to countries in Western, Southern and South-eastern Asia essentially for the purpose of locating a place to settle.
On 5 April 2013, the applicant was granted a Tourist (Class TR) visa. He first arrived in Australia holding this visa on 31 July 2013. On 31 October 2013, the applicants made a combined application for protection visas, the second and third applicant relying upon the applicant’s claims for protection. The applicant was granted an associated bridging visa (Class WA) coming into effect on 1 November 2013.
A migrant agent assisted the applicant in making his claims for protection. As set out in the application and attached annexures, the applicant feared that upon return to China he would be harmed by authorities as a consequence of the claims made out below, where he stated:
(a)he is a Muslim of Hui ethnicity and since 2008 the Xinjiang government has prohibited the practice of his religion;
(b)on 17 June 2008 in the capital of Xinjiang, Ürümqi, he was arrested with three others by the local authorities on suspicion of treason and creating public unrest. He claimed to be taken to a local police station and placed in a holding cell then later requested to make a declaration of guilt, of which he refused, for plotting against the government and causing unrest;
(c)he was subject to physical and mental abuse while detained and was released on 15 September 2008 after he made a deal with the authorities whereby he admitted guilt to a charge of instigating unrest and causing unrest in the community for the dismissal of the treason indictment;
(d)in or around early January 2009, he was arrested for organising home study groups to educate children in the Muslim faith. He claimed the police accused him of plotting against the current government which he denied and was subsequently detained for four months where he was constantly interrogated and beaten; and
(e)on 15 May 2009, while being detained for the second time, he was forced to sign a document to admit his guilt and was immediately released.
Documents attached with the visa application included a “notice of detention” which was relied upon as supporting the applicant’s claim that he had been arrested in 2009.
On 19 February 2015, the applicant attended a protection visa interview.
Delegate’s decision
On 6 March 2015, a delegate of the Minister refused to grant the visa. The delegate found the applicant did not meet ss 36(2)(a) or 36(2)(aa) of the Act and in doing so, did not accept his claims were credible; in particular, questioning the veracity of the claims that he was arrested in 2008 and 2009. As a consequence, the delegate refused the visa applications of the second and third applicant as they were members of the family unit included in the application.
The delegate’s decisional record provided detailed reasons for the finding she was not satisfied the applicant satisfied the criteria for the grant of a refugee visa or complementary protection. Section 8 of the decisional record distilled the applicant’s claims for protection and included his claim to being of the Muslim faith and that the practice of their faith was prohibited by the Xinjiang government in 2008. It recounted his claims to being arrested and detained in 2008 and 2009 and, as he claimed on suspicion of being anti-government and for organising a home study group for children to learn about Islam. In section 9 of the decisional record, the delegate provided her findings and reasons and questioned the veracity of his claims part of which she described as containing significant inconsistencies and as being convoluted.
The delegate concluded the applicant was not a generally credible witness and had shown a willingness to manipulate the evidence he presented but that, despite opportunities to clarify his evidence, the details of the claims that he relied upon as the catalyst for his departure from China and in seeking protection had been presented in a vague and inconsistent manner.
Tribunal decision
On 23 March 2015, the applicant lodged an application for review of the decision by the Tribunal attaching the delegate’s letter refusing the visa application and a copy of the decisional record. On 20 July 2016, the applicants’ representative filed a submission and country information on China. On 2 August 2016, the applicant attended a Tribunal hearing, doing so with the assistance of a representative and Mandarin interpreter. Evidence was provided at the hearing by both the first and second applicant.
On 20 February 2017, the Tribunal made a decision affirming the Minister’s decision to refuse to grant the visas and provided a statement of reasons for doing so (Reasons).
The Reasons were structured under the following topic headings: the application [1]-[3]; claims and evidence [4]-[49]; identity [4]-[5]; applicant’s claims and evidence [6]-[20]; assessment of claims [21]; credibility [22]; claimed detentions [23]-[33]; travel and interaction with travel authorities [34]-[45]; conclusions on claims [46]-[49]; risk of harm [50]-[66]; complementary protection [67]-[68]; conclusion [69]; decision [70].
In coming to its decision by finding that they did not satisfy the Refugee Criterion or the Complementary Protection Criterion, the Tribunal:
(a)did not accept the applicant was detained in 2008 or 2009 or suspected by the authorities to be involved with terrorists or convicted of any offence [33], [46]-[47];
(b)not satisfied his claims were credible as it found the applicant’s evidence was vague, general, implausible and inconsistent [23]-[26], [30]-[31];
(c)considered the country information on document fraud in China in rejecting the documentary evidence [32], [46];
(d)considered the inconsistency arising from the applicant’s claim that he travelled quite extensively overseas and without any interest from the authorities in comparison to country information about the Chinese authorities’ power to detain persons that were deemed to be of interest [26], [42]-[45];
(e)accepted the applicants were Muslim and accepted the second applicant had experienced some form of discrimination in her workplace [49], [61];
(f)did not accept the applicants had suffered severe discrimination and found that they could practice their religion without persecution [50]-[66]; and
(g)found the applicants would not face a real risk of significant harm from the Chinese government and authorities if they were to return to China [68].
Procedural history
On 16 March 2017, the applicants’ solicitor filed an application for review of the Tribunal’s decision affirming the Minister’s decision and advanced five grounds of review together with an affidavit affirmed by the first applicant which exhibited a copy of the Minister’s decision record and Tribunal’s decision and reasons. In their application under “Migration decision details”, the applicants provided details relating to both the decision made by the Minister to refuse the application and decision made by the Tribunal in affirming that decision.
By a response filed on 12 April 2017, the Minister sought dismissal of the application on the ground the application did not establish any jurisdictional error.
On 12 September 2017 and again on 13 August 2021, orders were made detailing the timeline for the filing of the documents and the matter be listed for final hearing.
On 17 August 2021, the applicants filed an amended application, abandoning their original grounds of review and advancing three new grounds in their place, together with written submissions and an affidavit by his solicitor to which was exhibited a copy of two transcripts from the Tribunal hearing together with a report by the Department of Foreign Affairs and Trade entitled “DFAT Country Report – People’s Republic of China” dated 3 March 2015.
On 8 September 2021, a final hearing was heard in this Court by a former judge of this Court. His Honour reserved judgment on the application.
On 24 May 2022, the matter was listed for directions before the Chief Justice who on that date made orders, by consent, that the matter would be considered by another judge of this Court and decided on the papers. Each party was supplied a copy of transcript of the hearing that had been held 8 September 2021 and granted liberty to file a further submission.
No further submissions were filed by either party.
Judicial review
If the decision is a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision upon the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Ground 1 – failure to consider claim: “religion & terrorist links?”
The substantive complaint made by Ground 1 concerned an alleged failure to consider claims made by the applicant stemming from his detention in 2008 and 2009. In short, the Tribunal rejected these claims on the basis of adverse credibility findings: [22]-[49].
Ground 1 of the amended application reads (underlining removed):
The Tribunal fell into jurisdictional error by failing to give proper consideration to the applicants’ claim or by asking itself the wrong question, in that it misunderstood the claim the applicants were making.
Particulars
(a) The Tribunal made repeated findings disbelieving the applicants’ claims on the basis that if the Chinese authorities had genuinely suspected the first applicant of terrorist involvement, they would not have released him after the Olympic Games and would not have permitted him to travel outside China.
(b) The applicants’ claim was not that the Chinese authorities genuinely believed the first applicant was involved in terrorism, but that the authorities used that trumped-up charge to persecute him on the basis of his religion.
(c) The Tribunal thereby failed to give proper consideration to the claim the applicants made and instead considered a claim that was different to the one actually made
While it was the subject of extensive debate in the hearing before this Court, the essence of Ground 1 was that the Tribunal failed, it was said, to appreciate that his claim was not that the Chinese authorities genuinely believed he was involved in terrorism; rather, it was that those authorities had used a trumped-up charge to persecute him on the basis of his Muslim faith.
Before turning to the principles respecting jurisdictional error based on failure to properly consider the basis on which a claim has been advanced to an administrative decision-maker, it is convenient to record that par 36(2)(a) and (aa) of the Act supply criteria for the grant of a protection visa on the basis that a person is owed protection obligations because he or she is a refugee or that there is a real risk the non-citizen will suffer significant harm.
Criteria for a protection visa are contained in ss 36(2)(a) and 36(2)(aa) which read:
(2) A criteria 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;
In turn, ss 5H and 36(2A) of the Act provide definitions of the terms ‘refugee’ and ‘significant harm’. The definition of ‘refugee’ includes that the person 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. By s 5J of the Act, the meaning of the term ‘well-founded fear of persecution’ includes such a fear on the basis of religion where the risk of persecution would relate to all areas of the person’s receiving country. So too, the definition of ‘significant harm’ provided by s 36(2A) includes that a person may be subjected to degrading treatment or punishment on the basis of, amongst other things, religion.
Applicable principles
The applicable principles were not in dispute. The failure of an administrative decision-maker to assess a claim actually made as the basis upon which a person claims to be a refugee or otherwise entitled to complimentary protection can constitute a constructive failure to review and may ground a conclusion of jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1. Black CJ, French and Selway JJ at [63], stated:
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’
In support of those principles Applicant WAEEv Minister for Immigration & Multicultural & Indigenous Affairs (2003) 256 FCR 593 at [45] in which another Full Court stated:
If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.
Those principles may apply where it is demonstrated that a decision-maker misunderstood the argument being advanced by a party, or overlooked it (or the evidence that was being relied upon to support it), or otherwise misconstrued the statutory power that it was being called upon to exercise: Waraich v Minister for Home Affairs [2021] FCAFC 155, 286 FCR 45, [71] (Bromberg, Katzmann and Cheeseman JJ); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, 309 ALR 67, [34]-[35] (Katzmann, Griffiths and Wigney JJ).
Submissions
The applicant contended the Tribunal fell into jurisdictional error by failing to give proper consideration to the applicant’s claim regarding false or “trumped up” charges of terrorism. The applicant claimed the Tribunal failed to assess the claim that was actually made, namely that Chinese authorities detained, beat and coerced confessions from the first applicant as a form of harassment and persecution, based on his religion and religious activity, despite not having any genuine suspicion that he had terrorist links.
The Minister submitted the Tribunal was correct to treat the applicant’s claim in the manner it did. The Minister accepted the applicant had claimed that his arrest was for suspected links to terrorist organisations, while at the same time, he had maintained his innocence of the charges. The Minister also submitted that because he maintained his innocence from the charges, the applicant was at times uncertain as to why he was being arrested, but posited that his arrest and detention may have been financially motivated. The Minister submitted the applicant had at no point made the claim that the authorities never actually suspected him of having terrorist links or that he was arrested solely as an act of persecution for his religious beliefs.
Resolution
As confirmed by the transcript, Counsel for the applicant agreed that the substantive basis for Ground 1 was that the applicant claimed he had been detained on a pretext of being involved with overseas terrorist organisations and that, in reality, the true basis for detention had been because of the applicant’s Muslim faith. Counsel for the Minister confirmed that it was agreed the applicant had always contended he was innocent of the charges levelled against him and, consistently with that claim, he would have maintained the charges were “trumped up”. Counsel also accepted that before the Tribunal, the applicant’s claim was essentially, “but for the fact that he was a Muslim, he would not have been, in loose terms, mistreated.”
From my examination of the materials, and in particular the transcript of argument before this Court, the essential point of difference between the parties involved identification of the claim actually made by the applicant as concerned his religion and terrorism, his claims to detention and the underlying reasons why he had, he said, been so detained. As the Court endeavoured to grapple with the precise claim being made, in the course of the Minister’s submissions, counsel for the applicant was asked to clarify the position and in doing so stated:
DR McBETH: Certainly, he was arrested and targeted because of his Islamic faith, sometimes under the rubric of security and sometimes not, but he was – the security – the question of whether the security accusations were genuinely believed is something that is in issue here.
. . .
HIS HONOUR - - - but I don’t want to put Mr Barrington to the trouble of responding to an argument that you don’t make, and as I understand it, it is no part of your case that on some occasions the applicant was mistreated solely on the basis of security concerns, and at other times solely on the basis of his religion. Rather, you say that the religious persecution was a prerequisite to all forms of mistreatment that form part of your case.
DR McBETH: That’s right, yes.
As noted, the Tribunal’s Reasons addressed the issue, Assessment of the applicant’s claims, from [22]-[49] and arranged those reasons in relation to the topics Claimed detentions at [23]-[33] and Travel of the applicant and interaction with authorities after detentions at [34]-[45] before distilling its Conclusions on the claims at [46]-[49].
So far as concerns material that was before the Tribunal, in the application made to this Court, attention was drawn to aspects of the applicant’s initial protection visa application. In Annexure 4, the applicant stated that since 2008 the local government had prohibited the practice of his religion and arrested and imprisoned him on two occasions for organising gatherings of people who shared his religious beliefs. In Annexure 5, the applicant described the circumstances of his arrest in 2008 and again in 2009. Attention was drawn to the circumstance that the applicant had maintained his innocence. Contrastingly, during his interview with the delegate, it was submitted that the applicant had given a convoluted and inconsistent account of those events, including in his written statement to the Tribunal made on 28 May 2016. Counsel for the Minister demonstrated persuasively that by the applicant’s account of events occurring in 2008-2009 (and that of his spouse), he had not been detained solely on the basis of his Muslim faith but “on the basis of religion and security concerns as an intermingled concept” and for that reason, it was submitted the Tribunal had discharged its task of assessing that claim.
Counsel for the Minister also drew to the Court’s attention a series of articles that had been supplied by the applicant for the purposes of his protection visa application which he relied on as supporting his claim that Chinese authorities’ held concerns of links between Islamist organisations in Xingjian and terrorism and national security. It was submitted that the applicant’s supply of those articles (from The Spectator and the ABC news), confirmed that from his own perspective, the applicant was submitting such country information in an endeavour to demonstrate the that Chinese authorities were “actually, in fact, concerned about links between religious organisations - - -” and terrorism and national security. I accept those articles confirmed a growing concern by the Chinese government at that time in relation to Islamic activists and the potential harm which they posed.
It was not in issue that the Tribunal squarely raised the question of the applicant’s credibility during the hearing, also observing that credibility was a matter put in issue by the delegate’s findings: [21], [46]. In relation to the topic Claimed detentions, the Tribunal described the applicant’s claim to have been first detained in 2008 as a result of having travelled to Pakistan in 2004 for a religious festival, as vague, implausible, generalised, lacking detail and unsubstantiated: [23]-[25]. In doing so, the Tribunal observed that the applicant’s evidence had been less detailed than that provided by his lawyer’s written submissions: [25]. As will appear, in rejecting the first claim, the gravamen of the Tribunal’s reasoning was grounded upon a conclusion that it was inherently implausible Chinese authorities would, at one and the same time, upgrade their allegations against the applicant to having links to foreign terrorist organisations, and then release him in exchange for a confession to that accusation.
In my opinion, it is clear the Tribunal understood and dealt, in a proportionate manner, with the applicant’s claim to have been detained upon the basis of his Muslim faith. His faith was addressed in the first line of the Reasons at [1]. It was repeated in that paragraph on no less than three further occasions. There is no doubt the Tribunal recognised the applicant’s claim to being a refugee on the basis of a fear of persecution grounded on his faith: Act, s 5H(1)(a).
Likewise, the Tribunal understood the claim to being a refugee on this ground had been rejected by the delegate: [2]. When dealing with the applicant’s claims and evidence, it also recognised his claim to having been persecuted, abused and harassed on the basis of his Muslim faith as a consequence of which he claimed he was deemed to be anti-government: [7]. The Tribunal identified those aspects of the applicant’s claim that the Xinjiang government prohibited the practice of his religion including the organisation of gatherings of persons who shared the Muslim faith and that the applicant claimed to have strengthened his Muslim beliefs as a result of having travelled for two months throughout Lebanon, Pakistan and Saudi Arabia for the express purpose of strengthening his beliefs in his faith: [7].
The Tribunal recorded the evidence given by the applicant in some detail and in doing so again proceeded with reference to the applicant’s Muslim faith and the harassment which he claimed was directed by police toward persons who organised gatherings, religious activities, private prayer sessions and religious holiday activities of the Muslim community and that he claimed responsibility for “organising most of the religious gatherings in our neighbourhood community.” The Tribunal also recognised the applicant’s claim to having been detained on the basis of having caused public unrest and, that during a period of detention in 2008, his wife had also been interrogated about his religious activities: [8]. Likewise, the Tribunal recognised the applicant’s claim respecting the attitudes of Chinese authorities toward people accused of practising a religion that was forbidden in China: [9]-[10].
The Tribunal recognised the applicant claimed to have been detained on two occasions; first in 2008, and again in 2009, and that the applicant had travelled extensively to and from China over the period 2006-2013: [10]-[12]. It also identified the photographic and other evidence provided by the applicant including two statements: [13]-[19]. Far from overlooking the applicant’s claims to being a refugee grounded upon a fear of persecution on the basis of his Muslim faith, the Tribunal set out with particular detail the matters contained in the applicant’s statement together with the statement of his spouse: [18]-[19]. It recognised the applicant and his spouse also gave evidence at the hearing: [20]. The Tribunal stated that it had regard to the applicant’s evidence, submissions and the evidence which he had provided to the Department before recording its conclusion at [21] that it was not satisfied of the claims.
The matters set out above provide the background for an evaluation of whether the Tribunal’s assessment of the credibility of the applicant’s claims at [22]-[49] reflect a proper consideration of the matters upon which Ground 1 was based; namely, “that Chinese authorities detained, beat and coerced confessions from the first applicant as a form of harassment and persecution, based on his religion and religious activity, despite not having any genuine suspicion that he had terrorist links:” applicant’s written submission, [15].
The applicant drew attention to the Reasons at [26] where the Tribunal stated:
A further concern was the downgrading of the charges. The applicant claimed in his initial statement that he was charged in 2008 with treason and creating public unrest, and when the Beijing’s Olympic Games had ended, on 15 September 2008, the authorities offered to drop the charge of treason if he admitted to instigating public unrest, which, under duress, he did. However, before the delegate and before the Tribunal the applicant claimed that as well as the nebulous “plotting against the government”, he was accused of having links to foreign terrorist organisations. The Tribunal noted that, the authorities having this suspicion, it did not appear plausible that the authorities would downgrade the charge simply to have him released now that the Olympic Games were over. The applicant maintains, in the country information supports, that Chinese authorities have wide latitude to detain people on suspicion, and to release someone who has engaged in the activities the applicant claims to have appears implausible where such a serious suspicion/charge was in place.
Having explained why it considered and regarded as implausible the claim to having faced accusations of having links to foreign terrorist organisations only to be released in exchange for a (false) confession, the Tribunal noted at [27] the apparent inconsistency in the applicant being required to report at monthly intervals to local authorities and having travelled so extensively after 2008: [11], [27]; see also at [40], [43-[45].
The Tribunal dealt with the applicant’s claim to having been detained in January 2009 and, in doing so, recognised the claim was based upon the applicant saying he had been hired to teach the Koran and Tabliqah (proselytizing) and had been arrested for teaching scripture: [23], [28]. The Tribunal noted that the applicant had been somewhat avoidant in answering questions in relation to the events occurring when he was detained by police on the second occasion (being so detained and interrogated for a period of three months).
The Tribunal observed that before the delegate, the applicant had not made mention of having been detained either in 2008 or 2009: [14], [29]. Further, the Tribunal noted that the applicant had continued to provide broad and generalised claims respecting his detention in 2009 and that, when afforded the opportunity to do so, the information provided had differed from that contained in his original statement: [30]. Upon those bases, the Tribunal stated at [31]:
The vague and general evidence, implausibility is and inconsistencies cumulatively, lead the Tribunal to disbelieve that the applicant is recounting an actual experience of having been detained on either occasion. They lead the Tribunal to doubt his claims about the activities that led to his claimed detentions, he detentions themselves, and the claimed consequences. They further lead the Tribunal to doubt the applicant’s overall credibility.
Attention was drawn to the Tribunal’s Reasons at [40], [43]-[45] (each of which paragraphs was contained within its consideration of the topic, Travel of the applicant and interaction with authorities after detentions. In those paragraphs, the Tribunal reiterated his adverse findings made upon the applicant’s credibility with respect to the matters which they are addressed.
In this context, each of the parties drew particular attention to extracts of the transcript of the hearing before the Tribunal. I have examined each of the passages to which attention was drawn (being from Transcript, pp. 16-25). However, it should be noted the discussion of the applicant’s claim grounded upon his Muslim faith commenced at p.4 where the applicant identified that he had travelled to Pakistan and then Saudi Arabia for the purposes of a pilgrimage or Hajj. The applicant stated he had travelled to Lebanon and Jordan for the purpose of finding a place where he could permanently settle: p.6-7. Asked about his business activities, the applicant stated he had run a small hotel in Shanghai but that the business had failed: p.7-8. He recounted his further overseas travels that were directed to finding a country where he could settle permanently and establish a business: p. 8-12.
The Tribunal enquired of the applicant’s Muslim faith at p.12-13. The Tribunal also discussed the subject of the applicant’s faith in the context of the applicant’s claims to having been harassed, detained and interrogated by Chinese authorities. The next issue addressed by the Tribunal concerned the applicant’s explanation for why these matters had not been mentioned when the applicant completed his tourism visa application and how, consistently with his reporting obligations, he had been able to travel so extensively after his release: Transcript, pp.27-32. Specific passages of the transcript of evidence before the Tribunal where the subject of oral submissions (as confirmed by the further transcript of the proceeding before this Court on 8 September 2021). I agree in the submission made to the Court on behalf of the Minister that the transcript confirms the Tribunal and applicant engaged upon his religion and suspected links to terrorism and security.
Nothing in the transcript of the Tribunal hearing supports a conclusion the applicant’s claim to fear persecution on the basis of his Muslim faith and suspicion of an actual or imputed connection to international terrorists was not adequately addressed. I also note the exhibit comprised only that part of the Transcript which contained a record of the applicant’s evidence. For that reason, while I am unable to discern the total duration of the hearing, the applicant’s evidence occupied 46 pages. I agree in the Tribunal’s observation that the applicant appeared to be non-responsive to certain of the questions that were put to him on specific topics.
In addressing its Conclusions on the claims, the Tribunal reiterated that the applicant’s credibility had been squarely in issue and that it had found him not to be a credible witness such that the Tribunal placed little weight upon his evidence or that of his spouse: [46]. It summarised its overall findings under a series of 15 bullet points at [47], including the claims that were based upon a fear of persecution arising from his Muslim faith. Without limitation, at least the first, second, third, fourth, fifth and sixth bullet points directly or implicitly addressed the claim to a fear of persecution on the basis of the applicant’s Muslim faith.
The Tribunal accepted that the applicants were Muslim: [49]. The Tribunal also accepted that the applicant’s spouse had suffered low level discrimination in her workplace: [49], [61]. However, based on country information and the evidence, it did not accept the applicants suffered religious discrimination and found that they could practise their religion and would not face any difficulties in doing so or attract the attention of the authorities: [50]-[66]. The Tribunal found that there was no real chance they would be detained, beaten, mistreated, have their religious freedom curtailed or otherwise be seriously harmed by the authorities or anyone else for reasons of their religion as Muslims, their ethnicity as Hui, their membership of their family or any other reason: [66]. I discern no error in the reasoning on this Ground.
Ground 1 is rejected.
Ground 2 – breach of s 424AA or s 425 regarding ‘detention notice’
By Ground 2, the applicant complains of a failure by the Tribunal to provide a meaningful opportunity to respond to information that suggested a ‘notice of detention’ was fraudulent.
Ground 2 of the application reads (underlining removed):
The Tribunal failed to comply with s 424AA, or alternatively s 425, of the Migration Act 1958 (Cth) by failing to provide a meaningful opportunity to respond to information suggesting that the notice of detention was fraudulent.
Particulars
(a) The Tribunal elected to put orally to the applicants information suggesting that documents provided by the applicants may be fraudulent.
(b) The Tribunal failed to give clear particulars of the information.
(c) The Tribunal failed to ensure that the applicants understood why the information was relevant and the consequences of the information being relied on in affirming the decision under review.
(d) The Tribunal failed to advise the applicants that they may seek additional time to comment on or respond to the information, or that they may request an adjournment of the review to respond to the information.
(e) The Tribunal failed to give the applicants a meaningful opportunity to respond to an accusation that the notice of detention was fraudulent.
(f) The Tribunal’s finding that the notice of detention was fraudulent was material to its rejection of the applicants’ claims regarding the first applicant’s detention and therefore to its overall decision.
The applicant contends that by characterising the “detention notice” as fraudulent and not informing the applicants of this decision it denied them the opportunity to persuade the Tribunal to the contrary about that notice. In so doing, the Tribunal had failed to comply with the mandatory procedures in s 424AA and breached s 425 of the Act.
Notably, Ground 2 contained no reference to, but rather leap-frogged, s 424A.
Applicable principles
Part 7 of the Act, Review of Part 7-reviewable decisions, is arranged in 8 divisions comprising ss 408-441G. Division 4 of Pt 7, Part 7-reviewable decisions: conduct of review, comprises ss 422B-429A. Section 422B provides that that division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. Section 424AA of the Act addresses the circumstances in which a Tribunal may orally provide an applicant with clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming a decision under review. It reads:
Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424AA must be understood as a facultative provision (see below).
Section 424A creates an imperative obligation to furnish an applicant with clear particulars of any information that a Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. It reads:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
While s 424A is obligatory, s 424AA is discretionary. Stated in other terms, s 424A prescribes what must be done; s 424AA provides one means by which that obligation can be satisfied; that is, s 424AA is facultative: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [2] (Moore J); at [73], [90] (Tracey and Foster JJ); special leave to appeal refused: [2009] HCATrans 211: see also Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14, 95 ALJR 404 at [35]-[36] (Gordon J).
The purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, [25(i)]. Section 424A provides that the Tribunal must, subject to two subsections, “give to the applicant, in a way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”, and ensure that the applicant understands why that information is relevant and the consequences of it being relied upon, and invite the applicant to comment or respond to it. For this purpose, information “refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal”: VAF (2004) 206 ALR 471, [25(i)].
As stated, the Tribunal’s obligation to put information to the applicant in writing is subject to two exceptions. The first is subs 424A(2A), which allows the Tribunal to avoid the obligation to put information to an applicant in writing, if the Tribunal instead puts the information to the applicant orally, in compliance with s 424AA. The second exception is subs 424A(3). That subsection carves out certain information from the Tribunal’s obligation in s 424A. Relevantly, the Tribunal is not required to put to the applicant information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member” or “that the applicant gave during the process that led to the decision that is under review.” However, ‘information’ does not extend to the Tribunal’s “subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”: VAF (2004) 206 ALR 471, [259(iii)]; SZBYR v Minister for Immigration and Citizenship (2007) 147 CLR 297, [18]; EXT20 v Minister for Home Affairs [2022] FCAFC 72, [141] (Wigney J).
Section 425 obliges the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The content of that obligation includes that an applicant is provided a meaningful opportunity to give evidence and present arguments relating to the issues arising on the decision under review.
Submissions
The applicant contended that the manner in which the Tribunal put its concerns to the applicants regarding the “notice of detention” was a breach of ss 424AA or 425 of the Act. In substance, the applicant submitted the Tribunal had implicitly found the notice of detention given by him to the Tribunal was fraudulent as it had addressed that issue in the context of DFAT country information which identified the prevalence in China of fraudulent documents for the purposes of visa applications. The applicant complained that the Tribunal spoke about the notice of detention in terms of such generality as to indicate a breach of s 424AA; alternatively, s 425.
The applicant contended the Tribunal had put country information concerning document fraud in China to the applicants in a way that was insufficient. The Minister submitted the Tribunal was not required to put that type of information to the applicants at all. By expounding upon why this information was not required to be put to the applicants, the Minister submitted, first, the country information was not specifically about the applicants; secondly, that country information was given by the applicant “during the process that led to the decision [that] was under review” and, thirdly, the information was not of the kind falling within the category of evidentiary material or documentation: SZBYR v Minister of Immigration and Citizenship (2007) 147 CLR 297, [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
Addressing the alternative submission made under s 425, the applicant contended the Tribunal did not give him the kind of hearing s 425 intended he should receive. The Minister submitted that there was no error involving any breach of s 425.
Resolution
In addressing the applicant’s claims and evidence, the Tribunal at [13] recorded that, amongst the documents provided by the applicant was “a notice of detention from the Shaqu sub-bureau of the Wushi PSB indicating the applicant was detained and remanded on any 5 January 2009”.
A copy of the translated notice of detention was provided in the court book at CB 132 and a copy of the untranslated notice was document 1(c) in the supplementary court book. It reads:
Shaqu sub-bureau of the Wushi Public Security Bureau
Notice of Detention
[BCU17]
In accordance with clause 61 of the “criminal Procedure Law of the People’s Republic of China”, [BCU17] was detained by this bureau and was remanded in [Watch House] at [##p.m.] on 25 January 2009 for his alleged endangering the safety behaviour.
25 January 2009
Public Security Bureau of [##] City
Sub- bureau of [##] DistrictPlease state the reason for not informing the detainee’s family or employer within 24-hours of being detained
Case officer (): [##]
25 January 2009
This copy is given to the detainee’s family or employer
As noted, the notice of detention was a document given to the Tribunal by the applicant.
The Transcript of the hearing at p.40.34 – 41.35 records the manner in which the issue of fraudulent documents was dealt with. The Tribunal introduced the topic at a level of generality, and spoke to the applicant on the topic of country information. It then addressed, in particular, the subject, “document fraud in China”, which indicated that where concerns were held by Chinses authorities about a person it was very difficult for them to depart or re-enter China.
The Tribunal member then stated that Australian government officials in China were “aware of fraudulent documents being used in support of visa applications” and after citing a number of examples stated “These are assessed as relatively easy to produce and commonly used in visa applications.” The Tribunal stated to the applicant that if he continued to hold concerns about the applicant’s claims, this may lead him to place “little or no weight on the documents that you’ve provided” and would do so “on the basis of this country information.” The interpreter appears to have relayed the applicant’s understanding of those statements.
The Tribunal then addressed documents provided by the applicant in relation to his detention and reiterated that “if we continue to have concerns and doubts about whether you were, in fact, arrested and detained, we may come to the conclusion that the documents you’ve provided are not genuine, and therefore, place no weight on them.” Through his interpreter, the applicant responded: “I insist about we do our application. I insist the (indistinct) were true.” Whatever precisely might be made of this response, one might infer that, at the least, the applicant was seeking to convey his insistence about the fact of his detention. It may follow that the applicant was also insistent as to the authenticity of the detention notice.
The following exchange then occurred:
MEMBER: the concerns that I’ve expressed to you, and as well as those in the decision of the Department, are about lack of detail in your description of the two detentions, about the difficulties in you explaining why they charged you with quite serious offences and then, for a reason you can’t explain, change those to what sound like fairly minor offences so as to have you released. I’m concerned that you say you were subject to month please monitoring by the authorities, but they then allow you to travel to a number of majority Muslim countries including the Middle East, despite you having said that they accused you of links to extra territorial terrorist groups.
There are inconsistencies in your claims about your detention in 2008 and why that happens. In your original protection visa application, and before the department decision-maker, you haven’t mentioned Tablighi Jamaat, you haven’t mentioned proselytising, it’s true that you have mentioned it in this document, but this was provided after the department decision. There appears to have been a process of you changing your evidence about these events, what led to them, what happens during them, and what happened after them.
Your travel history that we went through in quite a lot of detail does not appear consistent with someone who was accused of quite serious crimes by the authorities, including involvement with extra territorial terrorist groups. If the Chinese authorities had any concerns that you were involved with terrorist groups outside the country, everything I know about the Chinese authorities suggest to me that it is implausible that they would allow you to travel outside the country, let alone to Islamic countries, let alone to Islamic countries in the Middle East. The number and frequency of your travel outside China tend to suggest someone who the authorities have absolutely no interest in at all.
Do you want to say anything about those concerns?
INTERPRETER: I’d like to say they behave like that (indistinct) they try to crack down religious faiths. All the activities I have been involved in doing (indistinct) for us, we actually have no information like what they can choose as having any connection to extremist religious terrorists groups. The only reason for that is just trying to crack down our religious faith bracket indistinct) they all come to work for the visa for permanent residence.
An examination of that transcript confirms the cumulative factors identified by the Tribunal that were put to the applicant and upon which he was afforded an opportunity to comment.
In its consideration of the applicant’s claims to detention, the Tribunal at [31]-[33] provided its substantive findings upon this topic and in doing so, included its consideration of the notice of detention that the applicant had supplied to the Tribunal. Those reasons read as follows:
The vague and general evidence, implausibilities and inconsistencies, cumulatively, lead the Tribunal to disbelieve that the applicant is recounting an actual experience of having been detained on either occasion. They lead the Tribunal to doubt his claims about the activities that led to his claimed detentions, the detentions themselves, and the claimed consequences. They further lead the Tribunal to doubt the applicant's overall credibility
The Tribunal has had regard to the notice of detention dated 25 January 2009. The notice is brief and records only that the applicant was detained. As discussed with the applicant at the hearing, document fraud is practiced in China and the Australian Department of Foreign Affairs (DFAT) is aware of fraudulent documents, including official documents such as Hukou registrations and ID cards, and that 'DFAT assesses these documents are relatively easy to produce and are commonly used in visa applications. DFAT has been told of the existence of sophisticated syndicates that service call centres set up specifically to provide targeted background stories in support of fraudulent documents used in visa applications. The applicant was put on notice that this country informatio_n may lead the Tribunal to place· little or no weight on the documents provided including the notice of detention if his·claims were doubted
The Tribunal finds that these significant issues lead the Tribunal to the conclusion that the applicant was not detained by the authorities in 2008 or 2009 or at any other time, nor has he been suspected of involvement with terrorism groups nor has he been convicted of any offence. This further leads the Tribunal to doubt the applicant's general credibility
Those conclusions and findings are, of course, to be read with the Tribunal’s conclusion on the claims at [46]-[49].
In those reasons at [32], the Tribunal relied upon a DFAT Country Report, People’s Republic of China, dated 3 March 2015 at [5.26] concerning the statement that there existed sophisticated syndicates set up for the specific purpose of providing targeted background stories in support of fraudulent documents used in visa applications.
In the way in which the parties’ submissions were framed, they approached Ground 2 from opposite perspectives. Counsel for the Minister essentially treated the issue as falling within the exceptions created by ss 424A(2A), 424A(3)(a), (b) and (ba). Counsel for the applicant effectively bypassed those exceptions and instead focused upon the suggested failures to comply with each of the imperative obligations expressed in s 424AA(1)(b)(i)-(iv) and then submitted that the failure to comply with those mandatory procedures was material to the process of review and so supported a conclusion of jurisdictional error: Hossain v Minister for Immigration (2018) 264 CLR 123, [31] (Kiefel CJ, Gageler and Keane JJ).
I agree in the Minister’s submission that the Tribunal did not need to put to the applicant at all the DFAT Country Information respecting the prevalence of document fraud in China. It was correctly submitted that this information was not specifically about the applicant. It was also properly submitted that insofar as the notice of detention was information which was personal to the applicant, it was information that the applicant had himself supplied to the Tribunal. Furthermore, it is settled that because the subject of appraisals, thought processes or determinations, including an assessment of the gaps, defects or lack of detail of an applicant’s claims or evidence do not amount to information, an administrative decision-maker is not obliged put matters of that kind to an applicant: SZBYR (2007) 147 CLR 297, [18].
Indeed, as the transcript and reasons above confirm, insofar as the applicant complained of error on the part of the Tribunal in putting those matters to him in the course of the hearing, to have done so was an error (if it was error), committed in his favour.
As to the alternative submission made under s 425, it is to be recognised that the purpose of s 425 is “to give a visa applicant a meaningful opportunity to ‘give evidence and present arguments’”: DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290, [80]-[81]. The applicant relied upon DCP17 [2021] FCA 290. The Minister contrasted the facts of DCP17 with those of the present case.
DCP17 concerned Iranian identity documents that had not been given to the appellants (and therefore, could not be adequately tested or challenged by them), and which were central to the outcome of the review. Mortimer J based her conclusion on “the very particular and unusual circumstances of their reviews.” DCP17 is plainly distinguishable from the present case.
More fundamentally, there is no substance in a suggestion that, here, the applicant was denied a meaningful opportunity to present his case. The applicant who was represented and filed statemenets and other documents, supplied to the Tribunal the notice of detention. The submission that the genuineness of his detention notice was not in issue misstated the position. To the contrary, the credibility of the applicant’s claims was the central issue in his application, both before the delegate and the Tribunal. The fact of his credibility being in issue was the subject of extensive consideration in the delegate’s decisional record. And as noted by the Tribunal, the applicant supplied a copy of that decisional record to the Tribunal. In all of those circumstances, the applicant was squarely on notice that his credibility was in issue.
Ground 2 is rejected.
Ground 3 – failure to consider risk of harm from violence in Xianjing Province
Ground 3 concerned an alleged failure to consider complementary protection: Act, s 36(2)(aa).
Ground 3 of the application reads (underlining removed):
The Tribunal fell into jurisdictional error by failing to give proper consideration to a claim that arose squarely from the material before the Tribunal, namely the real risk of significant harm from separatist or generalised violence in the Xinjiang Autonomous Region.
At the heart of Ground 3 is whether the applicant made such a claim.
Applicable principles
As stated, the Tribunal was obliged to give proper consideration to claims expressly made by the applicant, as well as those that arise squarely from the material before the Tribunal: NABE.
In the context of Ground 3, counsel properly observed that as part of its assessment of the refugee criterion in s 36(2)(a) of the Act, the Tribunal was required to consider whether a person faced a real chance of serious harm for one of the specified reasons derived from the Refugee Convention. And in assessing the complementary protection criterion in s 36(2)(aa) of the Act, the Tribunal was required to consider whether there was a real risk a person would face significant harm as a necessary and foreseeable consequence of their removal from Australia to their originating country. As counsel submitted, such an assessment considers harm for any reason and is not connected to the Refugee Convention grounds under s 36(2)(a).
In DQU16 v Minister for Immigration (2021) 95 ALJR 352 at [18], Keifel CJ, Keane, Gordon, Edelman and Steward JJ confirmed that the two statutory questions were different and not interchangeable, and that this was because the purpose of the enquiry under each criterion was different. The Court observed, “s 36(2)(aa), which implemented the regime for complementary protection’ and with which this appeal is concerned, was inserted into the Act to provide an additional basis to s 36(2)(a) for the grant of a protection visa.” A complementary protection assessment is directed to the consequences of removing a person from Australia, not the reasons behind those consequences. In DQU17, the Court explained the difference between pars 36(2)(a) and 36(2)(aa) at [18]:
Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non‑citizen's removal to a particular State.
Relatedly, the caveats around the treatment of an applicant’s claims are well known.
In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, Gleeson CJ said (at [1]):
Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
See also, Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104, [33] Bromwich, Thomas and Raper JJ); EPJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 193, [58] (Murphy, Rangiah and Stewart JJ).
In AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503, Collier, McKerracher and Banks-Smith JJ at [18] endorsed a statement by Barker J in AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]-[68] that when considering claims were either “the subject of substantial clearly articulated argument, relying on established facts” or “clearly emerge from the material”, and such a finding was not to be lightly made, adding “[t]he fact that a claim might be said to arise from materials is not enough.”: see also CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124, [90] (Katzmann, Charlesworth and Burley JJ).
Submissions
The applicant properly submitted that the Tribunal was obliged to give proper consideration to claims that are expressly made by the applicants, as well as those that arose squarely from the material before the Tribunal. The applicant submitted the Tribunal did not consider the risk of harm faced by the applicants in light of the material that was put before them and thus failed to address s 36(2)(aa) of the Act. The applicant pointed to the DFAT country information that was before the Tribunal and that supplied by his representative which pointed to a surge in ethnic riots in 2009 in the Xinjiang province in which many persons had died or been injured. The applicant submitted that, after disposing of the questions posed by s 36(2)(a) at [1]-[66], the Tribunal’s treatment of complementary protection at [67]-[68] did not adequately address the question of whether the applicant faced a real risk of significant harm for any reason and that a mere restatement of its earlier findings did not do so.
The Minister submitted the applicants made no claim to fear harm upon return to Xinjiang Province on account of generalised violence and that no statement from the applicants, either in the court book or the transcript, advanced the argument now sought to be put.
Resolution
In my view, it is of no little importance to recognise that the nature of a merits review before the Tribunal is not an adversarial process but essentially inquisitorial and, in that context, the framework of the inquiry offers at least two perspectives. First, as is explicit from s 425(1) of the Act, the purposes of the hearing is to consider the evidence and arguments presented relating to the issues arising in relation to the decision under review. Secondly, it remains the responsibility of a non-citizen to specify full particulars of his or her claim to be a person in respect of whom Australia may owe protection obligations (however arising) and, accordingly, to provide sufficient evidence to establish such claims. While s 5AAA of the Act had not been inserted as at the date upon which the applicant made his protection visa application, in my opinion it may be seen as reflecting the principles stated by Gleeson CJ in Appellant S395/2002 as long ago as 2003. Such considerations also provide some context to the evaluation of whether an applicant has advanced a substantial, clearly articulated argument or one which, at the least, clearly emerges from the materials upon which he or she has relied.
I consider that the applicant did not advance a claim to fear harm upon return to Xinjiang Province on account of generalised violence. I also agree that the applicant now seeks, in effect, to advance such a claim by reference to a single paragraph in the DFAT report (which was exhibited to his solicitor’s affidavit, see at [3.6] on p.56) and a single sentence in an ABC article entitled “China jails Muslim man for growing beard, wife for wearing burka.” Further, I note the applicant’s evidence in response to DFAT Country information was that he considered the Hui ethnic group to be without religious faith and so could live, without any discrimination with the Han ethnic group. An examination of the transcript at 38.13-40.20 confirms that, despite being afforded the opportunity to do so, he did not advance a claim to fear harm upon return to this province arising from generalised violence.
Ground 3 is rejected.
Conclusion
The application should be dismissed.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 16 August 2022
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