Cat15 v Minister for Immigration

[2016] FCCA 3008

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAT15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3008

Catchwords:
MIGRATION – Review of decision by the Administrative Appeals Tribunal – whether the Administrative Appeals Tribunal’s decision is affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to comply with section 424A of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal failed to accord procedural fairness to the applicants – whether the Administrative Appeals Tribunal’s decision is affected by bias – whether the Administrative Appeals Tribunal properly considered the complementary protection criterion under section 36(2)(aa) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZUYK v Minister for Immigration and Border Protection [2016] FCA 216

First Applicant: CAT15

Second Applicant: CAU15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2727 of 2015

Judgment of: Judge Emmett

Hearing date: 22 November 2016

Date of Last Submission: 22 November 2016

Delivered at: Sydney

Delivered on: 22 November 2016

REPRESENTATION

The applicants appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Ms Chloe Hillary
(DLA Piper Australia)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2727 of 2015

CAT15

First Applicant

CAU15

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of Administrative Appeals Tribunal dated 16 September 2015 (“the Tribunal”).

2. The background of this matter, the claims of the applicants who are husband and wife, and the decision of the Tribunal are accurately summarised in the submissions of the first respondent, as follows:

   “Background

   2. The applicants are citizens of China.  The first named applicant (hereafter referred to as the applicant) arrived in Australia on 14 April 2008 as the holder of Student visa.  On 1 October 2011 she married the second named applicant in Australia. On 2 September 2012 the applicant and the second named applicant had a child, but in 2013 the child was sent to live with the second named applicant's family in China due to the applicant's ill health.

   3. The applicants applied for Protection visas on 24 October 2013. 

   4. The applicants claimed to fear harm in China due to their Roman Catholic religion.

   4.1 The applicant claimed to have been a Roman Catholic since she was a child having been baptised in China.  She claimed that on 15 June 2005 she was at a church gathering when it was raided by police who took away the landlord of the house, confiscated church items and informed the church members that their activities were illegal.  She claimed that on 4 October 2013 her brother was taken away by the local public security during a prayer session of Roman Catholic youths and that he was consequently detained and subject to inhumane treatment. 

   4.2 The second named applicant claimed that he grew up as an atheist but had been introduced to Catholicism by his wife.  He claimed that under her influence he had come to believe in the Roman Catholic religion.

   4.3 Both applicants claimed to have been attending St Dominic's Catholic Church in Flemington, whilst in Australia.  The second applicant claimed that he feared that if they continued to practise Roman Catholicism and attend underground churches when they return to China, they would face harm from the Chinese authorities. 

   5. The application was refused by a delegate of the first respondent on 11 February 2015.  The applicants applied to the Refugee Review Tribunal (now the AAT) for review of the delegate's decision on 18 February 2015.

   6. In support of their claims, the applicants provided the following documents to the AAT:

   6.1 Submissions from the applicants' migration agent with respect to country of origin information, and country information about the treatment of Catholics in China.

   6.2 Letter from [name omitted], a friend of the applicants, attesting to their Church attendance in Australia.

   6.3 Letter from [name omitted], President of the Western Sydney Catholic Chinese Community, stating that the applicants are members of the community and attesting to their Church attendance in Australia.

   7. The applicants appeared at a before the AAT hearing on 25 August 2015.  At the hearing, the applicants requested that the AAT contact Father Andrew Feng as he could provide information about the situation of underground Catholics in China, as he had recently undertaken a trip there.  As set out below at [9], the AAT did subsequently contact Father Feng in accordance with the applicants' request.

   8. On 31 August 2015 the applicants' migration agent provided submissions addressing issues raised during the hearing, and attaching the following supporting documents:

   8.1 A letter from the applicant's doctor regarding her medical history, and other medical records.

   8.2 A letter from Father Andrew Feng, a priest within the parishes of the Sydney Harbour North, attesting to the applicants' 'enthusiasm for the Catholic faith', and stating that they would be at risk if they returned to China.

   8.3 Marriage certificate of the applicants.

   8.4 Baptism certificate of the second named applicant.

   8.5 Country information.

   9. By email sent on 1 September 2015 the AAT wrote to Father Feng in relation to the applicants' request made at the hearing that the AAT seek his comments about the situation of underground Catholics in China.  The AAT requested any such information from Father Feng by 15 September 2015.  Father Feng emailed the AAT on 9 September 2015 and stated that he had spent time in China in March and June 2015, and had visited Fujian.  He set out the experiences of Catholics whom he had met during that visit.

   10. The AAT made a decision on 16 September 2015, affirming the decision under review.

   The decision of the Tribunal

   11. The AAT accepted that the applicant was a practicing Roman Catholic (see [51]).  The AAT noted that the second named applicant's knowledge of Roman Catholicism was not at the level of his wife's but that it was consistent with a person who had recently converted to the religion (see [61]).  The AAT found his evidence to be consistent with that of the applicant's and on the basis of their oral evidence, witness statements and the letter of support from Father Feng, accepted that he was a practicing Roman Catholic (see [61]). 

   12. Having regard to the consistent evidence of the applicant, the AAT accepted that the incident on 15 June 2015 may have occurred as described (see [64]).  The AAT also accepted on the basis of the applicant's consistent evidence that the events relating to her brother may also have occurred as described (see [67]).

   13. The AAT considered that the applicant had not encountered any difficulties with her practise of Roman Catholicism from 2005 until she left for Australia and that, apart from the incident involving her brother, her family had been able to practise their religion without difficulty (see [69]).  The AAT found this to accord with country information (see [69]).  The AAT found that country information largely suggested that Fujian province is generally considered to enforce regulations on religion less stringently than other province in China (see [76] and [82]). 

   14. The AAT concluded that on the basis of their oral evidence, the applicants' religious activities were general and routine in nature (see [90]).  The AAT found that the applicants did not proselytise in Australia and that they would not do so on return to China as they claimed to only have occasionally discussed Catholicism with friends (see [90]).   The AAT considered it likely that the applicants would attend an unregistered Catholic church in China (see [91]).  The AAT found that the applicants would not have to secretly attend such an unregistered church or practise their religion discreetly to avoid persecution as country information suggests that Fujian province tolerates lay practitioners attending unregistered church gatherings (see [91]). 

   15. The AAT found that, apart from the incident in 2013 involving the applicant's brother, her family was able to practise their faith without interference (see [92]).  The AAT found that the applicants were not high profile persons or persons whose religious practise would be considered a threat to Chinese authorities (see [92]).  The AAT found there was nothing in the evidence to suggest that the applicants would be prevented from returning to China or stopped or questioned by the Chinese authorities on return (see [93]).” 

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a 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.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  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.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The proceeding before this Court

1. The applicants were unrepresented before this Court, although had the assistance of a Mandarin interpreter.

2. At the outset of the hearing today, I explained to the applicants that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider their claims and reach different findings or conclusions. I explained to the applicants that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I also explained to the applicants that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicants that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

3. The applicants confirmed that they relied on the grounds contained in the Amended Application filed on 27 January 2016, as follows:   

   “1. The Tribunal didn't give due consideration to the support letter from Father Feng. It appeared that Tribunal was not prepared to consider any further evidence. In another word, the Tribunal had decided to refused our review application before the receipt of Father Feng's letter. We believe that the Tribunal had bias against us.

   2. The Tribunal didn't assess all the country information reports cumulatively and correctly and failed to invite us to further respond to its adverse findings. Even if the Tribunal didn't prepared to accept the risk of Roman Catholics being persecuted in Fujian province of China, she must invite us to give her a further response because it is the core matter of our refugee application. We had submitted so many reports about harassment and persecution of underground Catholic in Fujian Province of China. In his support letter, Father Feng also mentioned the lack of religious freedom in Fujian Province. Therefore, the Tribunal had the duty to give us an opportunity to respond to her disregard for Father Feng's opinion, which is requested directly by the Tribunal and is subsequently submitted to the Tribunal by Father Feng personally AFTER hearing. Therefore, the Tribunal failed to give us procedural fairness by not allowing us to challenge her conclusion with regards to why Father Feng's written evidence didn't support our case. It is totally unfair to deny ns any opportunity to respond to the substances of Tribunal's findings of our fear of persecution is not well-founded.

   3. The Tribunal failed in truly considering whether we were entitled to complementary protection other than a very brief broad conclusion at paragraph 95.”

   (Errors in original).

4. The applicants confirmed that they have no documents to provide to the Court this morning in support of their application. The applicants also confirmed that they have not filed any other documents since directions were made by me on 8 April 2016 providing an opportunity to the applicants to file a Further Amended Application, any further evidence and submissions in support of their application.

5. Each of the grounds of the Amended Application was interpreted for the applicants and each of the applicants was invited to say whatever they wished in support of the grounds.

Grounds 1 and 2

1. Ground 1 asserts that the Tribunal did not properly consider a support letter from a Father Feng. I understand this to be an email sent by Father Feng to the Tribunal after the applicants requested at the hearing that the Tribunal contact Father Feng for information.

2. Grounds 1 and 2 also assert that the Tribunal failed to give the applicants an opportunity to address the Tribunal’s concerns in relation to Father Feng’s email. Grounds 1 and 2 further assert that the applicants were not given an opportunity to address, what they perceived to be, the Tribunal’s disregard for Father Feng’s opinion.

3. Ground 1 further asserts that, for the reasons outlined above, the Tribunal was biased against the applicants.

4. In support of Ground 1, the first applicant said that if the Tribunal had not been biased, it would have informed them that it had received an email from Father Feng and provided an opportunity to the applicants to respond to it. The first applicant said that Father Feng is a priest and that his words should have authority. The first applicant also stated that the Tribunal should have asked questions after it had read Father Feng’s email, rather than not having any reaction. The first applicant further stated that the Tribunal did not consider Father Feng’s email prior to rejecting the applicants’ review application.  The second applicant declined to say anything in support of either Ground 1 or Ground 2.

5. In its decision record, the Tribunal noted that during the hearing, the applicants requested the Tribunal to contact Father Feng as he had recently visited Fujian Province in China. The Tribunal then noted the email correspondence between the Tribunal and Father Feng. In particular, the Tribunal noted that in his email, dated 9 September 2015, Father Feng provided a brief account of his visit to China during the period of 23 March 2015 to 23 June 2015. The Tribunal noted that Father Feng stated that he had spent most of his time during the visit in Jiangxi with his mother who had suffered a stroke two years earlier. The Tribunal also noted that Father Feng had stated that each place in China was different, and that he was told he could not preach in his hometown.

6. The Tribunal also referred to the statement in Father Feng’s email that he had spent three days in Fuqing City in Fujian Province where he hoped to learn more about the experiences of Chinese Catholics.  The Tribunal referred to the fact that Father Feng reported a lack of trust amongst priests and church leaders towards newcomers due to Government coercion. However, the Tribunal noted that Father Feng stated that he was eventually welcomed by a local priest.  The Tribunal then cited part of the email from Father Feng as follows: 

   “People do not go to churches though there are church buildings, but people gathered together at homes or some places which they feel safe. I met a lay leader who just released from prison. He told me, he did nothing wrong, only one thing he did was he always supported his parish priest.

   Priests do not have presbyteries. They live in their faithful homes. I do not how works and how people can find a priest when a faithful is in need. Perhaps the Holy Spirit guides them. The situation is not easy to be explained and I believe that ten people would say to you ten different versions of Chinese underground church. But there are still many priest and faithful in prison now. Because they are loyal to pope. For them without obeying to the Pope cannot be called a catholic.”

   (Errors in original).

1. In its decision record, the Tribunal stated that it considered Father Feng’s “advice”, and found that it accorded with certain country information reports before it, which indicated that there were occasional reports of arrests of priests and Catholic worshippers in Fujian Province in China. However, the Tribunal found that the bulk of the evidence before it supported the conclusion that the Fujian Province authorities enforced regulations on religion less stringently than other provinces in China, and that there have been few reported arrests in recent years.

2. The Tribunal referred in some detail to the country information before it, including country information provided by the applicants. The Tribunal then summarised its findings in relation to that country information. The Tribunal ultimately found that the country information provided by the applicants was outweighed by the majority of reports before it that suggested that the Fujian Province was generally considered to enforce regulations on religion, including Catholicism, less stringently than other provinces in China.

3. It is well established that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29). The Tribunal was not bound to accept the evidence provided by the applicants. The Tribunal’s decision record makes clear that it considered the country information provided by the applicants in some detail. The Tribunal also provided reasons as to why it preferred the country information identified by the Tribunal. Those findings were open to the Tribunal on the evidence and material before it, and for the reasons it gave.

4. Insofar as the applicants contended that the Tribunal was bound to bring Father Feng’s email to their attention for comment, I am not satisfied that it was information that enlivened any obligation under s.424A of the Act. It was not information that was part of the reason for the Tribunal affirming the decision under review. In particular, it was not information that undermined, rejected or denied the applicants’ claims (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) (“SZBYR”). Further, much of it was country information that was not specifically about the applicants and was, therefore, information excluded from any obligation under s.424A of the Act by reason of s.424A(3)(a) of the Act.

5. To the extent that Ground 1 asserted that the Tribunal’s failure to invite the applicants to comment on Father Feng’s letter indicated bias on its part, such a contention is not made out.  Father Feng provided a letter dated 28 August 2015 in support of the applicants’ claims. That letter attested to the applicants’ Catholicism which was accepted by the Tribunal. As stated above, at the hearing the applicants requested the Tribunal to contact Father Feng because he had recently been in Fujian Province. The Tribunal was not obliged to comply with that request.  Nevertheless, it did. Father Feng then sent the email, dated 9 September 2015, and that email was considered by the Tribunal, as referred to above.  Such conduct on the part of the Tribunal is properly interpreted as reflective of a mind that is open to persuasion.

6. A claim of bias is serious and requires evidence. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

7. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

8. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

9. In the circumstances, Ground 1 is not made out.

10. As stated above in the context of Ground 1, Ground 2 makes similar assertions about the failure of the Tribunal to invite the applicants to comment or respond following Father Feng’s email. Ground 2 also asserted that it was totally unfair to deny the applicants any opportunity to respond to the substance of the Tribunal’s finding that their fear of persecution in China was not well-founded. Those complaints in Ground 2 are also not made out.

11. Ground 2 also asserted that the Tribunal failed to accord procedural fairness to the applicants by not allowing them to challenge the Tribunal’s conclusions.

12. Such an allegation misunderstands the legislative regime under which the Tribunal conducted its review. Section 425 of the Act required the Tribunal to invite the applicants to appear before it to give evidence and present arguments about the issues relevant to the decision under review. The Tribunal complied with ss.424A and 425 of the Act by inviting the applicants to appear before it. Both applicants appeared before the Tribunal at a hearing and gave evidence.

13. A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the applicants’ claims with them and put to them matters of concern that it had about those claims. The Tribunal identified with particularity the country information to which it had regard.  The dispositive issue before the Tribunal, having accepted that the applicants were genuine Roman Catholics, was whether they would be harmed in China as a result of their Catholic faith. That was also an issue before the Delegate who found that the applicants would not be harmed as a result of their religion because they could attend a registered Catholic Church in China. 

14. The Tribunal accepted that the applicants would attend an unregistered Church when they returned to China. However, the Tribunal concluded that they would not be harmed as a result of doing so. A fair reading of the Tribunal’s decision record makes clear that it explored that particular issue with each of the applicants and noted their responses. The email from Father Feng did not raise any new dispositive issues on which the applicants needed to be afforded an opportunity to present evidence and arguments at a hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152) (“SZBEL”).

15. In SZBEL, the High Court of Australia, in a unanimous decision, stated at [35] as follows:

    “37. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review.”

16. It is well established that the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence are not matters that a Tribunal is required, under s.424A of the Act, to seek comment from applicants (see SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

17. Further, there is nothing in the Tribunal’s decision record to suggest that the applicants did not have a real and fair opportunity to put whatever they wished, and to participate in the hearing in a way from which it can be concluded that the hearing was fair and thus that administrative justice had been done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 24 per Allsop CJ).

18. Neither Grounds 1 nor 2 identify any jurisdictional error on the part of the Tribunal and appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicants’ complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53] – [54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

19. Accordingly, Ground 2 is not made out. 

Ground 3

1. Ground 3 asserted that the Tribunal failed to consider whether the applicants were entitled to complementary protection under s.36(2)(aa) of the Act. In support, the first applicant submitted that the Tribunal’s conclusion was too simple and did not state the issues sufficiently. The second applicant declined to say anything.

2. In the context of the applicants’ claims and the Tribunal’s findings, such a complaint, again, misunderstands the legislative scheme imposed on the Tribunal in considering whether the applicants met the criterion under either s.36(2)(a) or s.36(2)(aa) of the Act for protection visas.

3. The Tribunal, in its decision record, concluded that there was not a real chance that the applicants would suffer serious harm due to their Catholic beliefs or practice, or for any other reason, if they were to return to Fujian Province in China in the foreseeable future. Accordingly, the Tribunal found that the applicants did not have a well-founded fear of persecution in China. There were no other claims put by the applicants in support of the complementary protection criterion in s.36(2)(aa) of the Act.

4. The applicants’ complaint regarding the brevity of the Tribunal’s reasons misunderstands that they are based on the Tribunal’s consideration of all the evidence before it, and the findings and conclusions that it made in respect of that evidence in the context of considering whether the applicants had a well-founded fear of persecution for a Convention reasons.

5. It is well established that it is acceptable for a Tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).

6. In considering complementary protection criterion, the Tribunal noted that it had regard to the ‘PAM3: Refugee and Humanitarian Complementary Protection Guidelines’. The Tribunal stated that, on the evidence before it, and for the reasons set out above, it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there was a real risk that they would suffer significant harm. Those findings were open to the Tribunal on the evidence and material before it, and for the reasons it gave. 

7. In the circumstances, the Tribunal’s consideration of the complementary protection criterion is orthodox and without error.

8. Accordingly, Ground 3 is not made out. 

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the applicants at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence and noted their responses. The Tribunal acceded to the applicants request to contact Father Feng for further information about his visit to Fujian Province.  The Tribunal considered that information in some detail. The Tribunal also identified independent country information to which it had regard, and put that information to the applicants for comment.  

2. The Tribunal then made findings based on the evidence and material before it. Whilst the Tribunal accepted that the applicants were genuine Catholics, it found that they would be able to practise their religion in China without a real risk of significant harm. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it, and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 6 December 2016