CBQ19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1223
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CBQ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1223
File number(s): SYG 1263 of 2019 Judgment of: JUDGE MCCABE Date of judgment: 18 November 2024 Catchwords: MIGRATION – protection visa – review of a decision of the Administrative Appeals Tribunal – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 430, 438 Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 61; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA and Ors (2019) 264 CLR 421; [2019] HCA 3
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 22 October 2024 Place: Sydney Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms C Warren (Sparke Helmore Lawyers) Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1263 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CBQ19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first respondent’s costs in the fixed amount of $5000.
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
JUDGE MCCABE:
Ms CBQ19, the applicant in these proceedings, applied for a Protection (Class XA) (Subclass 866) visa (visa) in April 2015. She claimed she was owed protection obligations because she feared she would be mistreated if she returned to her home in China. She said she was a practising Christian who had been involved in various religious organisations in China that were disfavoured by authorities. She said members of her family had been persecuted on account of their religion, and she feared she would be in trouble if she returned and began to actively practise and evangelize her faith. A delegate (delegate) of the first respondent (minister) was unconvinced. The delegate refused the visa on 2 March 2016, and the Administrative Appeals Tribunal (Tribunal) affirmed the rejection decision on 1 May 2019. Ms CBQ19 sought judicial review of that decision. She says the Tribunal’s decision is affected by material jurisdictional error.
After reviewing the documents and hearing from the parties, I am not satisfied the Tribunal’s decision is infected by error. The application for judicial review must be dismissed. I explain my reasons for that conclusion below.
BACKGROUND TO THE APPLICATION FOR JUDICIAL REVIEW
The applicant is a citizen of China. She first entered Australia in 2007 on a Student Guardian (Class TU) (subclass 580) visa. She was accompanying her son who had come to Australia to study. Her husband and other family members remained behind at their home in provincial China. She applied for a further Student Guardian visa in 2009. That application was rejected. The rejection decision was affirmed by the Migration Review Tribunal. Ms CBQ19 subsequently sought ministerial intervention. The minister declined to intervene. Ms CBQ19 remained in Australia after 18 May 2011 as an unlawful non-citizen.
Ms CBQ19 did not apply for the visa in question in these proceedings until 17 April 2015. She formally raised the concerns about how she would be treated in China on account of her religion for the first time in that application. (She had not mentioned those concerns in her earlier visa applications or in the request for ministerial intervention.) The visa application was rejected by the delegate on 2 March 2016. The applicant promptly sought review of that decision in the Tribunal.
The Tribunal invited Ms CBQ19 to provide information in support of her claim. She provided references from pastors and parishioners of churches she attended in Australia. The Tribunal already had access to a statement the applicant had provided to the delegate (reproduced in the court book at pp 43-44) and other information from the departmental file. The statement offered an account of the applicant’s history of religious observance in China and Australia. It spoke of the experience of family members at the hands of authorities in the applicant’s home province. The statement recounted how various family members had been harassed and “put on the black list by the local government” on account of their religious activities. The statement was reproduced in the Tribunal’s reasons for decision.
The Tribunal hearing took place on 21 February 2019. Ms CBQ19 attended along with her migration agent. Ms CBQ19 was questioned at some length by the Tribunal about information that had already been provided – most obviously the claims Ms CBQ19 had made in the statement that was subsequently reproduced in the reasons for decision. The Tribunal asked for clarification of some matters and put apparent discrepancies to the applicant so she might offer an explanation.
The Tribunal’s decision dated 1 May 2019 affirmed the delegate’s decision. The decision was accompanied by a detailed set of reasons in which the Tribunal rehearsed and analysed the evidence and set out its findings of fact. The Tribunal also referred to the country information report generated by the Department of Foreign Affairs and Trade. The Tribunal mentioned some other documents that had been provided by the department which were the subject of a certificate issued under s 438 of the Migration Act 1958 (Cth) (Act), although the Tribunal made clear it did not have regard to those documents. (I will have more to say about the documents that were subject to the certificate issued under s 438 below since the use of those documents was the subject of one of the grounds of appeal.) The Tribunal concluded:
(a)the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act and she was not therefore a refugee within the meaning of s 5H – which meant she did not meet the criteria for the issue of a protection visa to a refugee under s 36(2)(a); and
(b)the applicant did not meet the criteria in s 36(2)(aa) for a complementary protection visa because the Tribunal was not persuaded the applicant “face[d] a real risk of significant harm for reasons relating to her religious faith and practice or for any other reason …”: at [82].
THE APPLICATION FOR JUDICIAL REVIEW
On 23 May 2019, Ms CBQ19 filed an application in this Court for judicial review of the Tribunal's decision. The applicant identified five grounds of review. She explained:
There exist jurisdictional errors in my case:
1.Tribunal did not apply the concept of harm correctly because potential harm may exist.
2. Tribunal failed to provide adequate reasons to reject my claims.
3.Tribunal did not properly consider the risk that I would face if I return to China.
4.Tribunal considered s.438 certificate as invalid but did not consider whether such error affected my case.
5. Tribunal consider irrelevant facts which adversely affected my case.
Ms CBQ19 did not draft the grounds on her own. She said she was assisted by a friend. Nothing turns on that. While a friend (I infer the same friend who helped draft the grounds) drafted some text that the applicant tendered at the hearing by way of submissions, that text, when translated, turned out to be a restatement of the grounds set out in the application.
The grounds properly begin by alleging jurisdictional error. As I explained to Ms CBQ19 at the hearing, the role of the Court in these proceedings is limited to identifying whether the Tribunal’s decision is infected by material jurisdictional error. The Court cannot grant the applicant a visa, and it does not consider the merits of her application. The merits are a matter for the primary decision-maker and the Tribunal on review, which are both executive decision-makers. If the Court is satisfied there is a material jurisdictional error which has, in effect, caused the decision-making process to miscarry, the Court has the discretion to provide relief.
The concept of jurisdictional error can be difficult to understand. The outlines of the concept are clear enough. A jurisdictional error occurs when there is some defect in the decision-making process that is so serious (i.e., material) that it causes the process to miscarry so that it is devoid of legal effect. While the decision-maker has purported to exercise their jurisdiction, the defect will entitle the Court to treat the decision that results as being legally ineffective. If the decision-maker has not effectively exercised the jurisdiction vested in it under the statute – if it has not actually done its job – the Court can say so (through the issue of a writ of certiorari which declares the decision is of no effect) and may return the matter to the original decision-maker (through the issue of a writ of mandamus, which is a binding instruction to the decision-maker to do its job).
It is not possible (or even desirable) to exhaustively define the concept of jurisdictional error, but uncontroversial examples of error can readily be described. As the High Court explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 61; [2024] HCA 12 (LPDT) at [3] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ:
Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness. [citations omitted]
The plurality in LPDT went on to emphasise that not every error in the decision-making process is inevitably jurisdictional. Some errors might be ignored or excused if they are not material, although some defects will be so serious that they will always be fatal when they are present. Importantly, the plurality insisted that the analysis of error does not occur in a vacuum: the analysis of a decision and the decision-making process must proceed having regard to the statutory power which the decision-maker purports to exercise. As the plurality explained (at [6]-[7]):
6In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
7In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. … [citations omitted]
The plurality pointed out the applicant who alleges the error bears the onus of establishing the facts which give rise to the error: at [10]. In some cases, that onus will be discharged by pointing to the decision where the fatal error is manifest: at [11]. In other cases, depending on the nature of the error being alleged, more is required of the applicant to discharge their onus. In those cases where the error is not inherently fatal when one has regard to the relevant law, it will be necessary to establish materiality. The plurality explained (at [13]-[14]):
13… whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.
14The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. [citations omitted]
Having said that, the plurality emphasised a court must not usurp the role of the executive decision-maker, observing (at [15]):
…the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.
The discussion of onus is relevant to this case because the applicant was unable to assist me at the hearing beyond repeating the grounds of review set out in her application – a document that she neither drafted nor understood. After I explained the concept of jurisdictional error and asked her to identify the problems with the decision in her own words, she declined to make any submissions. She was unable to point to evidence in support of her case or articulate an explanation for why any error that might be present in the decision was material, either inherently or by inference. I am therefore obliged to proceed with my analysis of the decision as best I can in light of the grounds as articulated.
Ground one: Tribunal did not apply the concept of harm correctly because potential harm may exist.
At the heart of the Tribunal’s function was the need to consider whether the applicant met the criteria in s 36 of the Act which determines eligibility for a protection visa. Section 36(2)(a) refers to the applicant being a person to whom Australia owes protection obligations because they are a refugee. Section 36(2)(aa) deals with a person who is not covered under s 36(2)(a) but who is nonetheless owed 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 …
A person will qualify as a ‘refugee’ for the purposes of s 36(2)(a) if he or she is unable or unwilling to return to their country “owing to a well-founded fear of persecution”: s 5H(1)(a)-(b) of the Act. Section 5J(1) of the Act goes on to explain that a person has a ‘well-founded fear of persecution’ if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
The Tribunal dealt with the refugee claim at some length. After making factual findings, it concluded (at [79] of its reasons):
The Tribunal had considered the applicant’s claims singularly and cumulatively. Having regard to what the Tribunal has accepted of her claimed profile, the Tribunal is not satisfied that she has a well-founded fear or persecution for reasons of her religion or for any other reason. The Tribunal finds that there is no real chance of the applicant being arrested, detained, harassed or otherwise harmed in connection with her religious activities and beliefs and/or those of her family members. The Tribunal finds that there is no real chance that she will suffer serious harm on account of her Christian faith. For the reasons given above, the Tribunal finds that there is no real chance that she will face harm of any type, including serious harm, for reasons relating to her religious activity in Australia and/or because she will be returning to China as a failed asylum seeker. The applicant has not claimed to fear political persecution and, having regard to its findings of fact, the Tribunal finds there is no real chance she will face serious harm because of her actual or imputed political opinion. The applicant’s claimed fear of persecution is not well-founded as required by s.5J of the Act. The applicant is not a refugee within the meaning of s.5H.
That paragraph confirms the Tribunal understood the legal test it was required to apply. It proceeded to apply that test to the factual findings it made with reference to the evidence. The Tribunal then proceeded to a legally reasonable conclusion. The Tribunal’s decision in this respect is not affected by any error, let alone a material jurisdictional error.
Strictly speaking, this ground of review does not refer to the Tribunal’s conclusion that the applicant was not a refugee. The ground of review suggests the Tribunal misunderstood the concept of harm which is relevant to the complementary protection criteria in s 36(2)(aa). Those criteria refer to the “real risk that…. [the person] will suffer significant harm”. Misunderstanding the concept of harm would almost certainly be a material jurisdictional error if it existed given the criteria in s 36(2)(aa).
This criticism of the Tribunal’s reasons is misconceived. The Tribunal correctly identified the definition of ‘significant harm’ in s 36(2A). After making its factual findings, the Tribunal correctly applied that test, concluding (at [82]-[83]):
82.Having regard to its findings of fact, the Tribunal finds the applicant does not face a real risk of significant harm for reasons relating to her religious faith and practice or for any other reason, including her status as a failed asylum seeker or her political opinion. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will face significant harm if she attends a registered church in China. Furthermore, even if she were to choose to attend an unregistered church, having regard to what the Tribunal has accepted about her religious profile and activities in Australia and China and the country information set out above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that she will face significant harm on this basis.
83.In summary, the Tribunal finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. There is nothing before the Tribunal to suggest that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. The Tribunal is not satisfied the applicant will be subject to significant harm for any reason, as a necessary and foreseeable consequence of her being removed from Australia to China.
I should add that the ground of review as drafted reflects a misunderstanding of the relevant test in s 36(2)(aa). The applicant alleges the Tribunal failed to appreciate that “potential harm may exist”, but the legislated criterion refers to “a real risk that the non-citizen will suffer significant harm”.
Ground two: Tribunal failed to provide adequate reasons to reject my claims.
The Tribunal's obligations where it provides a written statement of decision are set out in s 430 of the Act. Relevantly, it must state the decision and:
·set out the reasons for that decision;
·set out the findings on any material questions of fact; and
·refer to the evidence or any other material that provided the basis for the findings of fact.
The applicant did not particularise in the application how the reasons were deficient, and she was unable to assist me when asked about it at the hearing. The minister's written submissions dealt with this ground briefly, saying only that the Tribunal did everything it was required to do under s 430.
I am satisfied the Tribunal did comply with its obligations under s 430. The reasons for decision are comprehensive. They discuss the evidence and weigh it before making intelligible findings of fact. The reasons correctly identify the applicable tests and explain how those tests are applied to the facts to reach a legally reasonable conclusion (as I have already explained in the discussion relating to ground one). There is no substance to this ground.
Ground three: Tribunal did not properly consider the risk that I would face if I return to China.
This ground also lacks particularity, so it is unclear what the applicant means. The Tribunal’s statement of reasons records the Tribunal making findings about the (minimal) risk the applicant faced if she returned to China. The findings with respect to risk are summarised and weighed at [82] and [83] of the reasons for decision. There is no doubt the Tribunal did consider risk as it was required to do. It does not matter that a differently constituted Tribunal might have weighed that risk differently. There is no substance to this ground.
Ground four: Tribunal considered s 438 certificate as invalid but did not consider whether such error affected my case.
Of the five grounds of review, this one came closest to raising a genuine question of jurisdictional error.
The Tribunal had been provided with documents containing information which was not disclosed to the applicant. The minister had issued a certificate certifying that disclosure of the documents or the information contained therein would be contrary to the public interest for an identified reason pursuant to s 438 of the Act. Where a valid certificate is issued, the material is withheld from the applicant, but the Tribunal is expected to inform the applicant that there is documentation it will consider that is subject to the certificate. A failure to disclose the fact of the certificate “constitutes, without more, a breach of the Tribunal’s implied obligation of procedural fairness” which would amount to jurisdictional error where “the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision”: see Minister for Immigration and Border Protection v SZMTA and Ors (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [38] per Bell, Gageler and Keane JJ.
There is no evidence before me confirming the Tribunal disclosed the existence of the certificate at the time of the hearing. In its reasons for decision, the Tribunal explained the certificate was invalid in any event because it was deficient in ways discussed in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; [2016] FCA 1081. That meant the Tribunal was obliged to disclose the information to the applicant so she could make submissions if that information was being considered for the purposes of the Tribunal’s decision. But the Tribunal explained (at [11] of its reasons):
… the information purportedly covered by the certificate is of no relevance to the review and no further consideration has been given to that information.
It seems to me the Tribunal was not required to disclose the existence of documents which it did not regard as relevant and did not consider for the purposes of its decision. But even if the Tribunal did formally breach its “implied obligation of procedural fairness” by failing to disclose the documents and seek the input of the applicant, it is hard to see how such a “breach must give rise to a ‘practical injustice’” in the sense discussed in SZMTA at [38]. The absence of an opportunity to make submissions made no difference to the outcome. To the extent the failure to disclose the information was an error, it is not a material one in the sense discussed in LPDT. In the circumstance, I am not satisfied there is any substance to this ground.
Ground five: Tribunal considered irrelevant facts which adversely affect my case.
The application does not particularise the irrelevant facts which are said to have been considered by the Tribunal, and the applicant had nothing to say about this ground when I asked her about it at the hearing.
I have already pointed out the Tribunal’s reasons for decision were comprehensive. The findings of fact and the evidence on which those findings were based was relevant to the central question before the Tribunal, namely whether the applicant was able to satisfy the criteria applying to a protection visa. The Tribunal clearly had regard to material provided by the applicant at various stages of the process although it also considered the contents of the Country Information Report: People’s Republic of China dated 21 December 2017, issued by the Department of Foreign Affairs and Trade. I was unable to identify any material referred to in the reasons for decision which was irrelevant and therefore an impermissible consideration. I am not satisfied there is any substance to this ground.
CONCLUSION
For the reasons I have explained, I am not satisfied the Tribunal’s decision dated 1 May 2019 is affected by a material jurisdictional error. The application for judicial review must therefore be dismissed.
Before I adjourned the hearing, I asked the parties to make submissions regarding the question of costs if the applicant was successful and if she was unsuccessful.
Ms Warren, for the minister, said it was appropriate to make a costs order given the minister had incurred the costs associated with defending the Tribunal’s decision before the Court. She said the minister asked for a fixed costs order in the amount of $5000 – an amount that was less than the scale amount but which accurately reflected the amount of work that had been done on the file. The applicant expressed dismay about the quantum because she said she could not afford to pay that amount, but she did not otherwise dispute it was appropriate to make a costs order.
I agree that costs should follow the event in this case. The minister has incurred costs in defending the proceedings. I also agree the costs order should be made in the fixed amount of $5000: ordering costs at the higher amount reflected in the Court’s scale would confer a windfall, and Ms Warren quite properly eschewed that suggestion. While I appreciate that is likely to be a burden for the applicant, being impecunious – if that is the case – does not affect whether I should make the order even if it might affect the subsequent decision whether to recover those costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 18 November 2024
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