BXL19 v Minister for Home Affairs

[2020] FCCA 959

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXL19 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 959

Catchwords:
MIGRATION – Application for protection visa – assertion that withdrawal of pension and other financial benefits in China by government authorities constituted a basis for a finding that the applicant had a well-founded fear of persecution should he be returned to that country – findings that Tribunal did not err in finding that Australia did not owe protection obligations to the applicant – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.36, 5J.

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: BXL19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 441 of 2019

Judgment of: Judge Egan

Hearing date: 24 April 2020

Date of Last Submission: 24 April 2020

Delivered at: Brisbane

Delivered on: 28 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Nair

Solicitors for the Applicant: GEA Lawyers

Solicitors for the First Respondent: Mr Cummings, Solicitor of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The Further Amended Application for Review filed on 20 January 2020 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 441 of 2019

BXL19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of the People’s Republic of China who, via a number of short stay tourist and business visas, entered Australia on numerous occasions between November 2008 and 31 August 2015. The applicant applied unsuccessfully for a contributory parent visa on 12 June 2014.

2. The applicant applied for a protection visa on 27 January 2016. His migration history was relevantly as follows:[1]

   [1]        Court Book (CB) pp. 136 – 137.

Date	Event details
20/11/2008	Granted a UC-456 (Business – Short stay) visa offshore – the applicant did not travel to
14/01/2009	Granted a TR-676 (Tourist) visa offshore; LUD: 14/07/2009
01/05/2009	Arrived in Australia
09/05/2009	Departed Australia
14/07/2009	Granted a UC-456 (Business – Short Stay) visa offshore; LUD: 08/02/2010
20/07/2009	Re-entered Australia
27/07/2009	Departed Australia
21/10/2009	Re-entered Australia
28/10/2009	Departed Australia
08/02/2010	Granted a TR-676 (Tourist) visa offshore; LUD: 21/02/2014
01/10/2010	Re-entered Australia
19/10/2010	Departed Australia
29/04/2012	Re-entered Australia
07/05/2012	Departed Australia
02/11/2012	Re-entered Australia
16/12/2012	Departed Australia
08/06/2013	Re-entered Australia
14/06/2013	Departed Australia
01/10/2013	Re-entered Australia
08/10/2013	Departed Australia
22/01/2014	Re-entered Australia
21/02/2014	Departed Australia
28/02/2014	Granted an FA-600 (Visitor) visa offshore; LUD: 27 /10/2014
02/05/2014	Re-entered Australia
12/06/2014	Applied for a CA-143 Contributory Parent (Migrant - Temporary - UT 173 holder) visa; Sponsor: [name omitted] ( 15/08/1981,M)
22/07/2014	Departed Australia
06/08/2014	Re-entered Australia
15/10/2014	Departed Australia
27/10/2014	Granted an FA-Q00 (Visitor) visa offshore; LUD: 18/04/2016
31/10/2014	Re-entered Australia
28/08/2015	Departed Australia
31/08/2015	Re-entered Australia
27/01/2016	Applied for an XA-866 (Permanent Protection) visa
18/04/2016	FA-600 (Visitor) visa cancelled under s116 of the Act
27/04/2016	Granted an associated WE050 bridging visa
08/07/2016	PV interview conducted

[names omitted]

1. On 31 January 2017, a delegate of the Minister refused to grant a protection visa to the applicant.

2. On 24 February 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. During the course of the review process, the applicant provided the Tribunal with a substantial body of material, including three (3) sets of submissions, country information, media articles and three (3) statutory declarations.

3. On 4 April 2019, the Tribunal affirmed the decision of the delegate.

4. On 3 May 2019, the applicant filed an Originating Application for review of the decision of the Tribunal. The Further Amended Application for review relied upon by the applicant at the hearing before this Court was filed on 20 January 2020. The one ground of such Amended Application for review was as follows:

   “Ground One:

   The Tribunal failed to consider the applicant's claims. The Tribunal did not give proper, realistic and genuine consideration to whether deprival of pension, health insurance and other retirement benefits were serious and/or significant harm, and whether this deprival indicated future greater harm. The Tribunal failed to carry out its statutory task to review the delegate's decision.

   Particulars:

   1. The Tribunal accepted the applicant's claim that he had been expelled from the Communist Party of China (CCP) and all his pension and retirement benefits including his health insurance had been cancelled.

   2. The applicant claimed that this cancellation and its consequences was "serious harm" and/or “significant harm" under the protection visa legislation.

   3. The applicant claimed that this cancellation indicated that he would face greater harm, “surely face harsher persecution", if forced to return to China.

   4. The Tribunal adverted to these claims.

   5. There is, however, nothing in the Tribunal ' s Statement of Decision and Reasons to show that the Tribunal considered whether cancellation of all the applicant's pension and retirement benefits including his health insurance, and its consequences, was serious and/or significant harm. There is nothing in this Statement to show the Tribunal considered whether this cancellation indicated even greater harm if the applicant was forced to return to China.

   6. The applicant’s claims were clearly capable of being dispositive in the applicant’s favour.

   7. The only inference that can be drawn from the omission in the Tribunal's Statement of Decision and Reasons of any evaluation of these claims is that the Tribunal did not give proper, realistic and genuine consideration to these dispositive claims. The Tribunal failed to carry out its statutory task to review the delegate's decision.”

5. The applicant’s claims for protection were as recorded at [21] of the reasons of the Tribunal as follows:

   ·“The applicant is from the People's Republic of China.

   ·The applicant was [a senior official in the Guangdong Province] and a member of the Chinese Communist Party (CCP), and was an elected member of the National People's Congress between 2008 and 2012.

   ·Upon his retirement at the age of 60, the applicant was interviewed by the CCP's Central Commission for Discipline Inspection (CCDI) of the Guangdong Province. The applicant was interviewed twice by the CCDI in relation to allegations of wrongdoing.

   ·The applicant believes the CCDI were deliberately targeting him, and departed to Australia. The· applicant alleged that the CCDI attempted to persuade the applicant to return t9 China on several occasions.

   ·On 2 October 2015, the CCDI published information on its website regarding the investigation into the applicant for breaching the CCP Constitution. The CCDI accused the applicant of travelling to a foreign country without the permission of the CCP, remaining overseas for an extended period of time and not participating in CCP activities.

   ·The applicant was further accused of misappropriating public property and funds. He was found guilty of the alleged breaches and was expelled from the CCP.

   ·The applicant denied committing the breaches. Further to being expelled from the CCP, the applicant claimed that the Guangdong provincial authorities cancelled his retirement benefits including his health insurance and pension. The applicant noted that as a result of this action, and as a consequence of being deprived of any income, the applicant believes if returned to China he will lead a life of poverty.

   ·The applicant fears that if he is returned to China, he will be prosecuted for crimes he claims he did not commit, and face long-term imprisonment. The applicant claimed that he has many powerful adversaries in China because of his refusal to take part in corrupt government business. The applicant claimed that such individuals who failed to profit 'from corruption as a result of his refusal to participate wanted to take revenge.

   ·The applicant claimed that members of his staff were interviewed by police in order to obtain inculpatory evidence that would allow the applicant to be charged with criminal offences. The applicant noted that such interviews exceeded seven hours, and included legal threats of arrest made against the applicant's former staff members.

   ·The applicant claimed that he was informed by a police member that he was under investigation from the CCDI. The applicant claimed that his family members had been threatened by police with various legal threats, including confiscation of property.

   ·The applicant noted the difficulties that he would face in prison, and indicated that he would be subject to torture, or cruel and inhuman treatment. The-applicant suggested that this would be used as a means to obtain the applicant's confession to various crimes, and that he would be unable to endure such treatment.

   ·The applicant detailed an instance where he refused a bribe from powerful and influential individuals, and refused to engage in corrupt conduct in order to enrich those individuals. The applicant noted his belief that these individuals remained angered at his refusals to aid them, and soon thereafter the applicant became subject to criminal investigations.

   ·The applicant noted to the delegate at interview that he was no longer the subject of criminal investigations, but should he return to China, he will be subject to prosecution for corruption at the behest of the CCDI. The applicant noted his belief that the CCDI had concocted enough evidence to demonstrate his guilt, and that he feared torture in order to obtain his confession for crimes he did not commit.

   ·The applicant lastly noted that a close friend of his visited him in Australia, informing him of a message he had received from the former Guangdong Governor, encouraging the applicant to remain in Australia if the applicant wanted to live. The applicant noted that this echoed a message that the applicant received from his father, urging him to remain in Australia. The applicant indicated that as a result of his fear of persecution in China, he did not return to attend his father's funeral.”

   [identifying features omitted]

6. At [4] of its reasons, the Tribunal recorded that the applicant had been represented by a migration agent who attended the first and third, but not the second, Tribunal hearings.

7. At [6] – [13] of its reasons, the Tribunal comprehensively set out the relevant criteria for the granting of protection visas, and it specifically referred to s. 36(2)(a), (aa), (b) and (c) of the Migration Act 1958 (Cth) (‘the Act’) in that regard.

8. At [14] – [18] of its reasons, the Tribunal again comprehensively dealt with the applicable principles to be applied by a Tribunal when considering issues of credibility relevant to the fact-finding function of the Tribunal.

9. At [19] of its reasons, the Tribunal recorded that pursuant to Ministerial Direction No. 56, the Tribunal had had regard to PAM 3 Refugee and Humanitarian – Complimentary Protection Guidelines and PAM 3 Refugee and Humanitarian – Refugee Law Guidelines, as well as to relevant country information assessments prepared by DFAT.

10. The Tribunal succinctly summarised (at [22]) the submission made to the Tribunal by the applicant’s migration agent, as follows:

    ·“The applicant is a refugee on political grounds and as a member of a special social group, being an elite of the Chinese Communist government who did not fit into the prevailing corruption culture of the government.

    ·The applicant worked in China between 1970 and 2012. Between 2001 and 2012 he held important positions including as [a senior official in the Guangdong province].

    ·The applicant travelled to Australia to reunite with his only son in August 2015, to ·spend time with his son, daughter-in-law and grandchildren, and await his contributory parent visa.

    ·The applicant has been the subject of "why - spreading attack" from Chinese media staying overseas, refusing to return to China to cooperate with the authorities for investigations, and for breaching the discipline of the CCP. It was subsequently announced that he had been expelled from the CCP and deprived of his retirees entitlements including his pension.

    ·The applicant claims that he was also being illegally and secretly pursued by Chinese government agents in Australia.

    ·The applicant was referred to in an Australian newspaper in an article entitled "Beijing secret hunt for Communist Party official [name omitted]".

    ·The applicant "has a very real fear that he will suffer persecution upon return to China" based on his conduct including decisions made whilst occupying the roles referred to above. The applicant claims that being deprived of his party membership and pension entitlements are indicative of the fact that should he return to China he would, "surely face harsher persecution".

    ·The applicant also claims he is at significant risk of being persecuted by the Chinese authorities due to his refusal to return to China, amidst a "staged adverse publicity campaign (both in China and abroad) that explicitly or implicitly painting him as a corrupt fugitive without evidence".

    ·The applicant further claims he's already been treated as a quasi-criminal or criminal.

    ·It is further submitted that the applicant is experiencing current threats in Australia and that this is affecting his "ability to subsist;'. The applicant claims that he will be subjected to greater threats in China such that they will lead to "psychological distress" which "will render him incapable of performing ordinary activities that are required for day-to-day life and are necessary to subsist".

    ·The applicant submits "that the Chinese government is unable and unwilling to provide protection for him from their security forces. The .government is implicitly condoning or even actually supporting the abuse incurred by [the applicant]". The applicant claims that it is the Chinese government itself which is persecuting him.

    ·The applicant claims he suffered this persecution due to his expression of dissatisfaction towards the Chinese Communist regime.

    ·The applicant submits that he is a member of a particular social group ''which did write things based on principles when in power but had offended some officials whose interests were affected”. The applicant submits that those officials currently hold power and have conspired to "frame him up and persecute him in the absence of any grounds to do so.”

    ·The applicant claims that he had "political associations and activities whilst working in his previous position making right decisions at best interests of those officials who are currently in power”. He submits that those associations and activities have led to him being a target of the current Chinese government and receiving "arbitrary threats and publicity abuse".

    ·The applicant submits that he "has been stalked and threatened in Australia; and the government has deprived his pension benefits and launched a nationwide denouncement against him without legitimate base ease, which more than demonstrate selective harassment. The Chinese authorities have been inflicting this treatment specifically on him."

    ·The applicant submits that he "has already encountered numerous forms of serious harm whilst living in Australia and it is very probable that he will face even more serious harm upon return to China. He has already been subjected to threats of life and liberty, significant physical harassment and ill treatment. His right to subsist is also been threatened. His circumstances are only likely to deteriorate even further upon return to China where he will be arbitrarily arrested or even killed in where there is no actual rule of law".

    ·The applicant submits that the "current publicity abuse and personal attack by the State media ... Could also amount to degrading treatment or punishment’ ‘The applicant goes on to submits that the circumstances and ''abusive treatment" encountered by the applicant "encompassed degrading treatment or punishment which have "cause an extraordinary amount of humiliation and have left him feeling debased and underlie threats even in a foreign country".

    ·The applicant submits that he 'faces a very real chance of suffering significant harm as a consequence of his removal from Australia", and that the "chance is not remote and is very real".”

    [names and identifying features omitted]

11. The Tribunal again summarised the content of a further submission made to the Tribunal, in which was contained a statutory declaration by the applicant’s son dated 31 August 2017, as follows:

    ·“The applicant stood up for right in the face of the Chinese political system and consequently upset many powerful political figures.

    ·The applicant was accused of things that he had either never done, or which were the norm within the system. ''He was expelled from the Communist Party and all his retirement benefits were taken away".

    ·There was significant media attention.

    ·Former colleagues and drivers of the applicant have been threatened and interrogated in relation to the applicant.

    ·The applicant "read from the foreign news media the Chinese government sent out secret police to Australia, therefore, his anxiety also got worse, for example, if he saw some strangers in the neighbourhood, he would feel very uncomfortable.

    ·Friends have told the applicant that the CCP are trying to frame him.

    ·As a consequence of the actions set out above in this paragraph, the applicant had to leave his own father for his freedom, and the applicant became depressed and suffered physical illness, became isolated from his friends and colleagues, and became lonely.

    ·The applicant has changed from an ''open-minded, happy righteous man'', to an "old, weak, fragile and negative" person.”

12. At [24] – [40] of its reasons, the Tribunal analysed the applicant’s evidence given at the first Tribunal hearing, much of which was unattributed speculation on his part. When asked why the applicant’s wife could no longer obtain a visitor visa, the applicant replied that she chose not to because of the cost of such visa.

13. At [41] of its reasons, the Tribunal recorded that the applicant had said that his wife did not apply for a protection visa because she thought it would be a form of treason. At [54] of its reasons, having revisited the question as to why the applicant’s wife had not sought a protection visa, the Tribunal recorded that the applicant had contradicted what he had earlier said, by saying that the reason why his wife had not sought a protection visa was that she wanted to continue to visit her sick brother who lived in China.

1. At [46] of its reasons, the Tribunal recorded that the applicant had said that he feared being incarcerated “for double limitation” by reason of the unwarranted interest that the Chinese authorities had taken in him. At [47] the Tribunal recorded that the applicant had claimed that because he had applied for a protection visa he was in even greater trouble with the Chinese authorities.

2. At [49] of its reasons, the Tribunal recorded that a translated newspaper article had concluded that there was no hard evidence to prove that the applicant or his son has inappropriately benefitted from an identified investment.

3. At [50] – [62] the Tribunal analysed the evidence of both the applicant and his son. The applicant’s son supported the applicant’s evidence about the innocence of the applicant in relation to past business dealings in China.  The applicant’s evidence was in line with his earlier evidence as to his innocence.

4. At [63] – [66] of its reasons, the Tribunal considered the contents of a further statutory declaration from the applicant’s son which alleged that other family members in China had been targeted because of their links to the applicant. The evidence considered by the Tribunal was of the same character as the earlier evidence before the Tribunal, in that it constituted a repetition of earlier claims that the applicant had been involved in no wrongdoing and that he was being unfairly targeted.

5. At [67] – [71] the Tribunal noted the applicant’s claims at the third Tribunal hearing. It noted that the applicant had raised a previously undisclosed claim, namely that he had been involved in helping a Chinese company in the merger and acquisition of an Australian mining company which had given rise to his being accused of abusing his power and taking bribes.

6. At [71], the Tribunal noted the contents of an alleged translation of a Chinese media report in which the applicant, with others, had been named as being a high ranking official in China who had fled to Australia to escape punishment by the Chinese authorities.

7. At [72], the Tribunal recorded that it had put its concerns to the applicant regarding the consistency of the applicant’s evidence as follows:

   ·“In his written claims 'for protection, and as canvassed in the delegate's decision the applicant's concerns in relation to allegations of financial misappropriation were confined to the purchase and use of a vehicle, including related maintenance insurance and petrol costs. At the first two hearings no mention whatsoever was made of the vehicle. The applicant's concerns at hearing, to the extent they related to allegations of financial misappropriation, were with regard to the purchase of a mine or mines, which purchase was apparently at least partially approved by the applicant, and in respect of which the applicant's son-was involved. At hearing the applicant claimed that he and his son were being wrongfully blamed for the purchase/s of the mine/s which had subsequently lost money to the anger of the authorities. No issues were raised With respect to the mine/s in the applicant's claims for protection, nor in the interview with the Department as summarised in the delegate's decision. At hearing the applicant also told the Tribunal that he had discussed the issue of the purchase of the mine/s at one of the meetings with the authorities, and they had told him that he had not done anything wrong. The Tribunal has concerns that the information was volunteered to it regarding the motor vehicle referred to in the applicant's claims for protection, and that no mention was made in the-claims for protection, or to the department regarding the applicant's concerns with respect to the purchase of the mine/s.

   ·The applicant responded that his evidence was consistent. He said that he had not known that he was being targeted in respect of the mines when he made· his initial claim for protection. The Tribunal notes that this gives rise to a further inconsistency, as at the second hearing, as is set out above, the applicant told the Tribunal that he had discussed the purchase of "the mine" with the ·authorities and they had concluded in that regard that he had done nothing wrong.

   ·At hearing the applicant initially stated that his wife did not make a claim for protection because she regarded it as treason. He later stated that she did not make a claim for protection because she wished to be able to return to China to visit her sick brother.

   ·The applicant responded to reiterate that his wife thinks that to apply for a protection visa is to act in "a traitorous fashion''. The applicant said that this was because his wife had been educated in the Chinese way.

   ·The Tribunal also put to the applicant that he had given three versions in relation to the dinner meeting of 23 April 2014, the first of which was that his brother's friend told him that a special police team had been set up to investigate him, the second was that his brother's friend had told him that they decided that they could not "get'' him so they were going to pursue his son, and the third version, that the ·Chinese government were on the verge of arresting the applicant.

   ·The applicant denied that these versions were contradictory.”

8. At [73], the Tribunal referred to country information which suggested that rather than allowing media reporting in China to highlight corruption, the Chinese government heavily censored any news article which suggested that there was any corruption there. That led the Tribunal to have doubts that the alleged news articles referred to by the applicant were government approved, or that they were supportive of the applicant’s claims of past or future persecution.

9. At [74] – [77] of its reasons, the Tribunal set out the principles by which a well-founded fear of persecution was to be determined. It was noted that one such articulated principle was that “Conjecture or surmise has no part to play in determining whether a fear is well-founded.”  

10. It is clear from the material provided by the applicant to the Tribunal, and from a reading of the reasons of the Tribunal, that the Tribunal was well aware that the applicant had alleged that:

    a)He was a former a senior official in the Guangdong Province.

    b)He had, at the time of his retirement at age sixty (60), twice been interviewed by an anti-corruption body called the Central Commission for Discipline Inspection (CCDI) for Guangdong Province.

    c)He had fled China believing that the CCDI were deliberately targeting him.

    d)The CCDI had published information on its website regarding an investigation into whether the applicant had breached the Chinse Communist Party (CCP) constitution by travelling to a foreign country without the permission of the CCP, remaining overseas for an extended period of time, and not participating in CCP activities.

    e)He had been found guilty of alleged misappropriation of public property and funds and had been expelled from the CCP.

    f)The Guangdong Provincial authorities had cancelled his retirement benefits including his health insurance and pension such that if he returned to China he would lead a life of poverty.

    g)If he returned to China he would be prosecuted for crimes he did not commit and would face long-term imprisonment as payback and revenge for his not having accepted bribes to advance the criminal causes of corrupt individuals.

    h)His family members had been threatened by police including a threat to confiscate their property.

    i)He would be subjected to torture or cruel and inhuman treatment in prison so as to extract confessions from him.

    j)His life was in danger if he returned to China.

11. At [81], having closely considered all of the applicant’s claims, the Tribunal made relevant findings as follows:

    ·“The applicant was a senior official in Guandong Province where he had oversight of state-owned assets;

    ·The applicant retired in 2012 as a result of reaching 60 years of age;

    ·The CCDI was investigating allegations of corruption and breaches of party discipline;

    ·The CCDI expelled the applicant from the CCP;

    ·The applicant’s pension, health insurance and other related privileges were cancelled;

    ·The applicant was accused of engaging in corruption but was not charged with any criminal offences;

    ·There has been some sporadic media questioning the involvement of the applicant and his son in the loss of money and/or corruption with respect to state owned enterprises;

    ·One of the media articles before the Tribunal clearly states "there is still no hard evidence to prove whether [name omitted] or his son had inappropriately benefited from this investment."

    [names omitted]

Ground 1

1. The applicant’s claims in Ground 1 of the Further Amended Application for review can appropriately be grouped into the following categories:

   a)Past Claim – namely that the past cancellation of the applicant’s pension, health insurance and other related entitlements supported a finding that the applicant qualified for protection pursuant to either or both of s. 36(2)(a) or s. 36(2)(aa) of the Act; and

   b)Future Claim – namely that the fact of cancellation of the financial privileges the subject of the Past Claim provided the basis for a finding that the applicant qualified for protection, because such withdrawal of privileges evidenced a likelihood that the applicant would face greater forms of harm, or harsher forms of persecution in the future, if he was to return to China.

2. As to the Past Claim, it is clear that the Tribunal appreciated that the applicant was asserting that he would be put in a financially stressful situation, should he be returned to China, because of the alleged cancellation of the pension, insurance and other financial entitlements. So too is it clear that the Tribunal well appreciated that the applicant was making those claims, notwithstanding that the applicant’s financial position, as recorded in the delegate’s decision (a decision which had been read and considered by the Tribunal) was as follows: [2]

   [2]        CB p. 139.

   “He claims that he stepped down from all above posts in February 2012 upon reaching the standard retirement age of 60. He could work in the provincial Commerce and Trade Commission for another three years but instead chose to completely retire. He was awarded a monthly state pension of 16,000 RMB (about $3,200 at the current exchange rate) which was stopped in July-2015.

   On retirement, the applicant possessed personal savings of about 2 million RMB. He currently has about $200,000 in an Australian bank account; he further has about USD 50.000, RMB 700,000 and 150.000 in HK dollars in various bank accounts in Guangzhou. The amount of USD 50,000 is, frozen by the Guangzhou Commercial Bank because the applicant's bank card has expired (i.e. for a legitimate reason that is unrelated to his protection claims); it can be renewed only if the applicant attends the bank in person.

   He also bought an apartment at the time the real estate still was affordable and sold it for more than 4 million RMB at the peak of the market. He owned it jointly with his wife. He currently owns a 58 sq. m unit in Guangzhou where his former wife has been living rent-free after they divorced. He further inherited two family homes from his late father, which produce monthly rental income of about 5,000 RMB. He claimed however that most of it is being paid into property management yielding little disposable income.”

   If the Tribunal had accepted the applicant’s claims that he would have been unable to subsist if he was returned to China, it would not have made findings that there was no real chance that the applicant would be persecuted for any of the reasons as set out in s. 5J of the Act.

   
   
   

   Specifically, the Court infers that the Tribunal simply did not accept the evidence of the applicant that the applicant would suffer any significant economic hardship that threatened the applicant’s capacity to subsist should he be returned to China. [3] The Court recognises that the Tribunal was not required to set out each and every part of its reasoning process when arriving at its decision. Its findings should not be so minutely examined with a view to finding fault. As was said by French, Sackville and Healy JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593:

   “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

   [3] Section 5J(5)(d) of the Act.

3. Further, it is clear that the Tribunal’s findings were such that the applicant’s claims that he would not be able to subsist should he be returned to China were considered, and weighed up, in the light of all of the other evidence before the Tribunal.

4. One example of how the Tribunal made its findings about there being no well-founded fear of persecution in the light of the evidence before it, was in its treatment of the applicant’s assertion that the Chinese government had lost face by not arresting the plaintiff, or otherwise punishing him, before he left China for Australia. [4] At [82], the Tribunal recorded that country information suggested that if the Chinese authorities had wished to criminally pursue the applicant as claimed, then the applicant would have been detained and not allowed to leave China.

   [4]        Paragraph [62] of reasons – CB p. 463.

5. It was further noted by the Tribunal that the applicant had obtained a police clearance in 2016/2017. The applicant had retired from his role in the Guangdong administration in 2012. It was clearly open to the Tribunal to query why the applicant would so seek a police clearance, and later in 2018 seek a notary service, yet at the hearing assert that he was too fearful to renew his passport in 2019. [5] Those matters, though clearly inconsistent with the applicant’s claims, were consistent with the Tribunal not finding that the applicant had a well-founded fear of persecution if he was to be returned to China.

   [5]        Paragraph [83] of reasons – CB p. 468.

6. At [82] of its reasons, the Tribunal found that it did not consider that there was an objective real reason for the applicant’s fear of persecution. It was noted that the applicant had not been formally pursued by the Chinese authorities since his arrival in Australia. On his own evidence, the applicant was investigated by the Chinese authorities between the time of his retirement in 2012 and the time of his departure for Australia in 2014, yet there is no evidence that the applicant was either jailed, tortured or detained during that period. He was allowed to leave China and his passport was not cancelled.

7. The Tribunal was entitled to give no weight to the content of newspaper articles when assessing the applicant’s claims. It is trite that a Tribunal is only required to seriously consider claims which were either the subject of substantial and clearly articulated argument, relying on established facts, or matters of relevance that clearly emerged from the material before it. The fact that something is reported in a newspaper does not constitute the content of the matter reported as being an established fact or established facts. As was said in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18] per Collier, McKerracher and Banks-Smith JJ:

   “[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

   ·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

   ·The Tribunal is only required to consider such claims where they are either:

   (a) the subject of substantial clearly articulated argument, relying on established facts; or

   (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

   ·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

   ... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

   (Emphasis added.)

   ·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

   (a) such a finding is not to be made lightly (NABE at [68]);

   (b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

   (c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

   37     While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

   38     Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

   (d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

   (e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

1. At [84] of its reasons, the Tribunal found that in the absence of any supporting evidence, the claims about the applicant’s wife and members of his family being prevented from leaving China were unconvincing. When considering whether there was any force to any of the arguments advanced in respect of the Future Claim, the Court was entitled to look at the substance of the Past Claim. The applicant’s Future Claim was prefaced upon the proposition that the applicant would suffer “harsher persecution” because such would be the natural consequence of the cancellation by the authorities of the applicant’s right to receive a pension, health insurance, and other financial entitlements. There is no logic to such submission. There was no independent evidence to that effect. The Tribunal was entitled to reject such proposition, as it clearly did.

2. The claims advanced on behalf of the applicant were the subject of extensive consideration in what were lengthy reasons delivered by the Tribunal. The substantive issues for consideration by the Tribunal were of short compass. The Tribunal did not accept that there was sufficient evidence to give rise to a well-founded fear of persecution. The repetition of claims of likely harm being suffered by the applicant should he be returned to China did not enhance the veracity of such claims.

3. At [88] of its reasons, the Tribunal found that the applicant did not satisfy the relevant s. 36(2)(a) criteria so as to warrant the granting of protection to the applicant.

4. At [89] – [92] of its reasons, the Tribunal set out its reasons for not finding that the applicant satisfied any relevant complimentary protection criteria.

5. It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

6. Further it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

7. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

8. The Further Amended Application for review is without merit and is dismissed.

9. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

10. The Court will hear the parties as to costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 28 April 2020