CCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 167
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 167
File number: SYG 1188 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 16 March 2022 Catchwords: MIGRATION – application for review of decision of Administrative Appeals Tribunal – where there was a delay of 18 months between Tribunal hearings – whether delay gives rise to jurisdictional error – whether Tribunal gave proper, genuine and realistic consideration to medical evidence – whether Tribunal decision unreasonable – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 48A, 414, 476, 477, 499 Cases cited: AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 168 ALD 331; [2019] FCA 2205
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24
BIX15 v Minister for Immigration and Border Protection (2017) 72 AAR 569; [2017] FCA 1116
DFE16 v Minister for Home Affairs [2021] FCA 1151
DSG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 982
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of last submission 3 November 2021 Date of hearing: 29 October 2021 Place: Perth Counsel for the Applicant: Mr R Turner Counsel for the First Respondent: Mr L Dennis Second Respondent Submitting appearance, save as to costs Solicitor for the Applicant: Turner Coulson Immigration Lawyers Solicitor for the Respondents: Minter Ellison ORDERS
SYG 1188 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCF18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
16 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
By application filed on 13 April 2018, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 20 March 2018. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (protection visa). The application is brought pursuant to s 476 of the
Migration Act 1958(Cth) (Migration Act).
For the reasons explained below, I have found that there is no jurisdictional error in the Tribunal decision and I dismiss the application to the Court.
BACKGROUND
The applicant is a citizen of the People’s Republic of China (China). She most recently arrived in Australia in 2009 as the holder of a visitor visa.
The applicant applied for a protection visa on 14 July 2010. On 16 November 2010 a delegate of the Minister refused to grant the protection visa. That decision was affirmed by the Refugee Review Tribunal on 1 June 2011.
On 21 October 2013 the applicant lodged a second application for a protection visa, claiming that she would face harm if returned to China as a result of her practice of Yiguandao (also known as I Kuan Tao). It is this second application for a protection visa that is the subject of the Tribunal decision to be reviewed in this proceeding. The second visa application was made following amendments to the Migration Act in 2012, which introduced the complementary protection provisions, and the judgment of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 (SZGIZ). The effect of the Full Court’s judgment in SZGIZ is that the statutory bar in s 48A of the Migration Act did not operate to prevent the applicant from making an application for a protection visa to have her claims assessed under the complementary protection criteria in
s 36(2)(aa) of the Migration Act in circumstances where her earlier protection visa application was made only in relation to the refugee criteria in s 36(2)(a) of the Migration Act.
On 5 February 2015 a delegate of the Minister considered the applicant’s second protection visa application and made a decision not to grant the applicant a protection visa.
On 17 February 2015 the applicant lodged an application for review of the delegate’s decision by the Tribunal.
The applicant attended a hearing before the Tribunal to give evidence and present arguments on 14 July 2016. The hearing ran for almost three hours with a further hearing to be arranged on another day. A second hearing was held on 9 August 2016 and ran for approximately two hours.
On 20 July 2017 the applicant’s representative sent an email to the Tribunal to enquire when a decision would be made in the matter. There is no evidence in the court book of any reply to this email.
On 13 February 2018 the Tribunal wrote to the applicant and invited the applicant to attend a further hearing on 28 March 2018. At the applicant’s request, that hearing was rescheduled to 28 February 2018. A request to further reschedule the hearing was refused and the hearing proceeded on 28 February 2018 and ran for approximately two hours.
On 20 March 2018 the Tribunal affirmed the decision not to grant the applicant a protection visa.
TRIBUNAL DECISION
The Tribunal considered the applicant’s claims for protection against the complementary protection criteria in s 36(2)(aa) of the Migration Act. The Tribunal found that it did not have jurisdiction to consider the applicant’s claims against the refugee criteria in s 36(2)(a).
The Tribunal accepted that the applicant was first introduced to Yiguandao by her sister in Australia in 2007. However, the Tribunal did not accept that the applicant had come to the adverse attention of the Chinese authorities as a result of her practice of Yiguandao. The Tribunal had a number of concerns about the applicant’s evidence including:
(a)The applicant claimed to have been detained by the Chinese authorities in March 2008. She then remained in China until August 2009 despite being granted a visitor visa in June 2009. The timing of the applicant’s departure from China undermined her claims that she fled China in 2009 because she was of adverse interest to the Chinese authorities, and suggested that at the time she left China she did not fear being harmed or targeted for any reason.
(b)The fact that the applicant was able to depart China travelling on her own passport without difficulty suggested that she was not of any serious interest to the Chinese authorities at the time of her departure and undermined her claims that she was under surveillance in China.
(c)There were inconsistencies between the applicant’s oral evidence to the Tribunal and her husband’s written statement. The Tribunal did not accept that the applicant’s husband’s statement described events that actually happened to him or the applicant and did not accept that the applicant’s husband had ever attracted the adverse attention of the Chinese authorities because of the applicant’s practice of Yiguandao.
(d)The Tribunal found that the applicant’s evidence that she took Yiguandao books back to China because she wanted to practice Yiguandao in China difficult to reconcile with her evidence that she did not discover Yiguandao was banned until March 2008, a month after that she claimed her books were confiscated by custom officials.
(e)The applicant arrived in Australia in August 2009 but did not apply for a protection visa until July 2010. The Tribunal was not persuaded that the applicant had adequately accounted for her significant delay of 11 months in applying for a protection visa.
The Tribunal did not accept that evidence provided by the applicant of treatment she received for a physical injury in China corroborated her claim that she was injured by the police in China. The Tribunal did not consider that any mental health conditions that the applicant had were attributable to her claimed past experiences in China. The Tribunal was not satisfied that the applicant’s mental health conditions explained or excused the Tribunal’s concerns about the credibility of her claims.
The Tribunal’s findings of fact in relation to the applicant’s claims based on her religion are set out at [64] of the Tribunal’s reasons, where the Tribunal said:
... the Tribunal finds that the applicant’s claims that she has attracted the adverse attention of the Chinese authorities are not credible. The Tribunal does not accept that she took Yiguandao books back to China or that these books were discovered by officials at the airport or that she was detained and/or questioned by custom officials at the airport or that she planned to practice Yiguandao in China at this time or that she was subsequently detained, questioned and assaulted by the Chinese authorities, and/or that she was pushed down the stairs by police, or that her activities in China were monitored and that she was subject to surveillance as claimed. The Tribunal rejects, in their entirety her claims that she attracted the adverse attention of the Chinese authorities when she returned to China in 2008 because of her involvement with or interest in Yiguandao. The Tribunal finds that at the time the applicant departed China in August 2009 she was not of adverse interest to the Chinese authorities for any reason and rejects her claims that she travelled to Australia because she was afraid of been persecuted because she was, or was perceived to be, a Yiguandao practitioner.
The Tribunal found that the applicant was a low level Yiguandao practitioner who did not hold any leadership positions or engage in any public proselytising about her faith. The Tribunal accepted that the applicant may wish to continue to express her beliefs in Yiguandao in China by attending gatherings with other practitioners and by reading religious material and praying. Taking into account country information, the Tribunal was not satisfied that the applicant would face a real risk of significant harm from Chinese authorities or any other person or group as a result of being a follower of the Yiguandao religion.
The Tribunal considered the medical evidence submitted by the applicant and accepted that the applicant had been diagnosed with depression and anxiety. In circumstances where the Tribunal found the applicant had fabricated her past experiences of harm in China, the Tribunal did not accept that the applicant’s mental health conditions were attributable to her past experiences in China nor that the applicant had post-traumatic stress disorder (PTSD) as a result of her past experiences. The Tribunal did not accept that there was a real risk that the applicant would suffer significant harm for reasons related to her mental health if she was returned to China.
The Tribunal was not satisfied that the Chinese authorities would be aware that the applicant had applied for a protection visa in Australia or that, if the authorities did become aware of this, there was a real risk she would suffer significant harm for this reason.
After considering the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk that she would suffer significant harm.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on
13 April 2018. The application was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application raises the following three grounds of review:
1. The Tribunal failed to carry out its statutory duty.
PARTICULARS
a. The Migration Act 1958 s 414 provide:
“(1) Subject to subsection (2), if a valid application is made under section 412 for the review of a Part 7 – reviewable decision, the Tribunal must review the decision”
b.The applicant was refused the visa on 5 February 2015 and so applied to the Second Respondent (Tribunal) for review of the refusal.
c. The Tribunal held its first hearing on 14 July 2016 and 9 August 2016.
d.The Tribunal held its second hearing on 28 February 2018 and only after the Applicant had enquired in relation to the progress of her case and the likely time of a decision.
e.By delaying the decision and the timing of the resumed hearing, the tribunal has failed to carry out its statutory duty under s 414 of the Act.
f. Any real review must be conducted in a timely manner.
2. The Tribunal failed to carry out its duty to review the Applicant’s application.
PARTICULARS
a.The Tribunal dismissed the psychological evidence on the basis of the diagnosis of a psychological condition was not probative of the reason for the psychological condition.
b.The diagnosis of the condition cannot be doubted. While it is true to say what it does not definitely prove the cause of the condition, it must have been caused by something.
c.By failing to recognise this effect and failing to make a finding in relation to the cause of the condition, the Tribunal failed to carry out its statutory duty to review the application.
3. The Tribunal’s decision is unreasonable.
PARTICULARS
a. There is no logical reasoning behind the:
i. Delay
ii. Treatment of the Applicant’s evidence
iii.The Tribunal found that Yiguandao had been banned in China but was not a banned sect for some time without acknowledging that, at the time of the Tribunal’s decision, it was again a banned sect.
iv.The Tribunal’s reasoning in relation to the Applicant’s practise of Yiguandao is internally inconsistent.
v.By waiting for 18 months before holding the resumed hearing and relying on reports which were generated between the two hearings, there is a reasonable inference that the Tribunal only delayed holding the resumed hearing so that the reports could be published.
Both parties filed written submissions ahead of the hearing in accordance with orders made by a Judge of this Court on 18 May 2018. The matter came before me for hearing on
29 October 2021. The applicant was represented by Mr Ray Turner and the Minister was represented by Mr Liam Dennis.
At the conclusion of the hearing, I gave both parties the opportunity to file further written submissions. The applicant filed further submissions on 3 November 2021. On 14 November 2021 the Minister’s lawyer sent an email to my associate confirming that the Minister did not intend to file further submissions.
GROUND 1
Applicant’s submissions
The applicant referred to the length of time between the early hearings on 14 July 2016 and 9 August 2016 and the later hearing on 28 February 2018. She submitted that the Tribunal did not comply with its statutory duty under s 414 of the Migration Act to conduct a real review of her matter in a timely manner.
In oral submissions, Mr Turner submitted that the only explanation for the delay offered by the Tribunal, that ‘[t]he Tribunal was on leave for a significant period of 2017’, was entirely inadequate.
Mr Turner submitted that another reason the delay was significant was because the Tribunal relied primarily on country information published in 2017, while the matter was delayed, in reaching its decision.
In the applicant’s further written submissions filed on 3 November 2021, the applicant responded to the Minister’s oral submission based on DFE16 v Minister for Home Affairs [2021] FCA 1151 (DFE16). The applicant submitted that the test referred to at [69] of DFE16 was ‘whether there are circumstances which a reasonable man might consider render this delay justified and not capricious’.
The applicant submitted that, in the present matter, the delay has not properly been explained. The Tribunal convened a third hearing which it said was to discuss the applicant’s involvement in religion in Australia. The applicant submitted that evidence of this had already been provided to the Tribunal both in writing and at the first two hearings, and that there is a reasonable implication to be drawn that the only reason for the third hearing was to mask the delay.
Minister’s submissions
The Minister understood the applicant’s ground to be an assertion that the Tribunal committed a jurisdictional error of the type identified in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 (NAIS), where the delay in decision-making by the Refugee Review Tribunal was such that ‘in the absence of any countervailing considerations advanced in the reasons of the Tribunal … there was a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired’: at [10] per Gleeson CJ.
The Minister submitted that there was no time limit within which the Tribunal is required to make a decision. The Minister further submitted that the delay between the application to the Tribunal and the Tribunal’s final decision did not adversely impact the Tribunal’s ability to decide the application before it because:
(a)the applicant was invited to a third hearing one month prior to the Tribunal’s decision so the Tribunal was able to make a contemporaneous assessment of the applicant’s credibility;
(b)the Tribunal explained that the member had been on leave for a significant period of time in 2017;
(c)the Tribunal said in its reasons that it recently listened to the audio recording of the hearings to ensure that its findings are accurate and it carefully considered all the evidence before it in reaching its conclusion; and
(d)the Tribunal had regard to the numerous documents and submissions that the applicant provided to the Tribunal before and after the hearings.
In oral submissions, Mr Dennis submitted that the applicant’s submissions do not specify why the delay amounts to jurisdictional error. Mr Dennis submitted that the Tribunal’s capacity to assess the application was not impaired in any way in this matter. Mr Dennis referred to DFE16 to support the propositions that it is for the applicant to establish that there has been an unreasonable delay and that the test to determine whether there has been a failure to perform the decision-making duty depends on whether there are circumstances in which a reasonable person might consider render the delay justified and not capricious. Mr Dennis submitted that in all the circumstances there was nothing unjustified or capricious about the delay in this matter.
Mr Dennis submitted that any allegation that the reliance on updated country information amounts to bad faith or improper purpose is unsubstantiated by the evidence in circumstances where the Tribunal is required to perform a fact-finding function on the basis of information that it considers to be relevant to the performance of its task.
Resolution
The delay between the first two hearings on 14 July 2016 and 9 August 2016, and the Tribunal’s decision on 20 March 2018 is significant, being some 19 months. However, as Gleeson CJ said in NAIS at [5], ‘the circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare’.
It is necessary to look at all the circumstances of the case to determine whether the delay in the present matter between the early hearings and the decision created a real and substantial risk that the Tribunal’s capacity to assess the applicant’s evidence, or otherwise perform its statutory function to conduct the review, was impaired: see, for example, NAIS at [9] to [10]; DSG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 982 at [55]; BIX15 v Minister for Immigration and Border Protection (2017) 72 AAR 569; [2017] FCA 1116 at [43].
In the circumstances of the present matter, I do not accept that the delay by the Tribunal caused its review to miscarry.
The Tribunal has offered an explanation for the delay between the hearings in 2016 and the hearing on February 2018 at [43] of its reasons, where it said:
The Tribunal was on leave for a significant period of 2017 and regrets the delay in finalising this matter. The Tribunal has recently listened to the audio recording of the hearings held in this matter again to ensure that its findings are accurate and it has carefully considered all the evidence before it in reaching its conclusion.
While this explanation may not be as fulsome as the applicant would like, in my view, it adequately explains at least part of the delay. I do not consider that the Tribunal was required to explain to an applicant the precise period of time during which the Tribunal member was on leave or the reasons for that leave.
Both parties have referred to DFE16 after the Minister’s counsel raised that case in oral submissions, and have made submissions about whether the delay in the present matter was justified, or whether it was capricious or a consequence of neglect, oversight or perversity. I have some doubts as to whether DFE16 is the most apt case to refer to in relation to this ground, noting that the applicant in DFE16 was seeking a writ of mandamus to compel the Minister to make a decision that remained outstanding at the time of application, whereas, in the present matter, the Tribunal proceeded to make a decision.
In any event, the applicant in the present matter has not established that the delay was capricious or unjustified. In particular, there is no evidence from which I can find or infer that the Tribunal delayed finalising its review to await the publication of country information that would be adverse to the applicant. Once the delay occurred, which appears to be at least in part attributable to the leave taken by the Tribunal member, it was appropriate for the Tribunal to have regard to up-to-date country information in reaching its decision. I would not be willing to find that the Tribunal deferred its decision to await the publication of new country information, which it knew or suspected would be adverse to the applicant, unless there was clear evidence to establish that. There is not.
The applicant in her submissions to this Court has focused on the length of the delay and the reasons for the delay, but did not elaborate in her submissions on the consequences of the delay. The applicant asserted that the delay resulted in jurisdictional error because the Tribunal did not conduct its statutory task in a timely manner. However, the applicant has not explained how the delay resulted in jurisdictional error.
I am not satisfied that the delay in the present matter led to a real and substantial risk that the Tribunal’s capacity to assess the applicant’s evidence was impaired. First, the Tribunal acknowledged the delay and took steps to mitigate the consequences of the delay. These steps included convening a third hearing which was held only a month before the Tribunal decision and ‘listen[ing] to the audio recording of the hearings held in this matter again to ensure that its findings are accurate and it has carefully considered all the evidence before it in reaching its conclusion’. Second, the Tribunal’s findings in this matter that were adverse to the applicant did not turn on the applicant’s demeanour or the demeanour of any witnesses called on behalf of the applicant. Where the Tribunal made adverse findings against the applicant, these were because of inconsistencies in the applicant’s evidence, implausibility that was not adequately explained, and the vague and unpersuasive nature of some of the applicant’s evidence. The delay did not impair the Tribunal in making these assessments in circumstances where the Tribunal held a further hearing, re-listened to the audio recordings, and had regard to the written material provided by the applicant.
Finally, the applicant submitted that the third hearing was unnecessary and that it should be inferred that the purpose of the hearing was to ‘mask the delay’. I do not accept this submission. The delay in this matter was unfortunate. However, when in February 2018, the Tribunal found itself faced with an outstanding decision in relation to which the last hearing had been held in August 2016, the Tribunal was required to finalise the review in a way that was procedurally fair to the applicant. One way in which the Tribunal could do this was to invite the applicant to a further hearing. At this hearing, it appears that the Tribunal invited the applicant to provide updated information about her personal circumstances and to comment on country information that had become available since the earlier hearings. The Tribunal acted appropriately and fairly in convening the third hearing.
Ground 1 does not establish jurisdictional error.
GROUND 2
Applicant’s submissions
The applicant submitted that the Tribunal failed to carry out its statutory duty to review the applicant’s application by failing to give proper, genuine and realistic consideration to the psychological evidence which supported the applicant’s claim for protection.
The applicant submitted that she made a clearly expressed claim that she would be committed to an institution in China or imprisoned because of her mental health conditions and Yiguandao faith. The applicant submitted that the Tribunal failed to give proper, genuine and realistic consideration to the availability, access and standards of mental health services in China.
In advancing this submission, the applicant relied upon AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 168 ALD 331; [2019] FCA 2205 (AIJ19), specifically, that the decision-maker is to undertake ‘active intellectual engagement with the hardship that might be caused to the applicant if he is returned in this respect’, and that mere recognition that any available mental health services may be of a lower standard is not sufficient.
In his oral submissions, Mr Turner took the Court to a number of the medical reports that were before the Tribunal. Mr Turner emphasised that the applicant’s medical practitioners, and in particular her psychologists, attributed her mental health conditions to events and traumatic experiences in China. One of the applicant’s diagnoses was PTSD and Mr Turner submitted that to be diagnosed with PTSD, one must have experienced a traumatic event. Mr Turner submitted that the Tribunal failed to properly consider these reports because it did not accept that the applicant had experienced the traumatic event in China, and therefore did not accept that the applicant had PTSD.
Minister’s submissions
The Minister submitted that the Tribunal’s decision to give no weight to the psychological reports was a matter for the Tribunal in the course of its fact-finding function, particularly where, as in the present matter, the Tribunal provided reasons for that assessment of weight. The Minister submitted that the Tribunal was not obliged to accept the psychologist reports, but to simply consider the reports, take the reports into account and explain its reasons for not accepting the reports.
The Minister also submitted that the applicant’s reliance on AIJ19 was misplaced as AIJ19 was decided in a different statutory context. Further, the applicant’s submission of a failure of ‘proper, genuine and realistic consideration’ amounted to an invitation to the Court to undertake impermissible merits review.
In oral submissions, Mr Dennis submitted that the Tribunal had clearly engaged with the medical evidence and that its findings were open to it. At no stage did the Tribunal outright reject the diagnosis in the medical evidence. Rather, the Tribunal did not accept the applicant’s account and that account was the basis of the diagnosis of PTSD.
Resolution
I am satisfied that the Tribunal in the present matter carefully considered the medical evidence provided on behalf of the applicant and took that evidence into account in reaching its decision.
The Tribunal first referred to the medical evidence in its summary of the evidence before it. It first addressed the impact of the medical evidence on its findings at [44] of its reasons, where it said:
The Tribunal has carefully considered the medical reports that state that the applicant suffers from depression and anxiety and PTSD as a result of her experiences in China. These reports were produced in the context of the applicant’s ongoing applications for a protection visa. While the Tribunal is prepared to accept that the applicant may suffer from depression and anxiety, the medical reports do not satisfy the Tribunal that any mental illness suffered by the applicant is attributable to her claimed past experience of harm in China. Such an assessment can only be made after considering the totality of the evidence before the Tribunal. Furthermore, the Tribunal is not satisfied the applicant having depression and anxiety explains the inconsistencies between her evidence and that of her husband, its concerns about the timing of her departure from China (she was granted a visitor visa on … June 2009 but did not depart China until … August 2009), her substantial delay in applying for a protection visa or its other concerns about the credibility and plausibility of her claims about her past experiences, which are detailed below.
The Tribunal then proceeded to consider the evidence before it in relation to the events that the applicant claimed happened to her in China and gave reasons for rejecting those claims. The Tribunal then returned to the impact of the medical evidence on its assessment of the applicant’s claims at [62] and said:
After considering all the evidence before it, the Tribunal is not satisfied that any mental health conditions that the applicant has are attributable to her claimed past experiences in China. With respect to the medical reports which were produced in Australia, these reports were prepared in the context of the applicant’s ongoing applications for a protection visa and reflect her self-reported account of her experiences in China. Having considered all the evidence before it, the Tribunal does not accept the applicant’s claims to have attracted the adverse attention of the China authorities are credible. Accordingly, the Tribunal is prepared to accept that the applicant suffers from depression and anxiety but not for the reasons claimed. Furthermore, while the Tribunal has taken into account the submissions about the applicant’s mental health and, in particular, her difficulty remembering traumatic events, the Tribunal is not satisfied that the applicant’s mental health issues explain or excuse the Tribunal’s concerns about credibility of her claims, which are set out above.
It can be seen from these two extracts that the Tribunal was cognisant of three matters relevant to the assessment of this ground:
(a)The Tribunal was aware that the medical evidence had been provided, at least in part, to corroborate the applicant’s claims about events that she said happened to her when she was in China.
(b)The Tribunal was aware that its statutory function required it to consider the totality of the evidence before it and make findings of fact based on all relevant evidence, rather than simply accepting a medical practitioner’s understanding of events that led to a medical diagnosis.
(c)The Tribunal was mindful that mental health conditions can potentially impact the evidence given by an applicant and considered, in the present matter, whether the applicant’s mental health conditions adequately explained the concerns that the Tribunal had about her evidence.
I do not identify any jurisdictional error in the Tribunal’s approach. The Tribunal considered all relevant evidence, including but not limited to the medical reports, and provided cogent reasons for its finding that the applicant had not attracted the adverse attention of the authorities in China. Having made that finding, the Tribunal was not required to speculate about whether some other event had led to the applicant’s mental health conditions.
In this regard, I acknowledge the applicant’s submissions, summarised above, in relation to the diagnosis of PTSD. The Tribunal did not make an express finding about whether or not it accepted that the applicant had PTSD. Rather, its finding was that the applicant did not have PTSD as a result of her past experiences in China. This can be seen from the final sentence of [80] where the Tribunal said:
However, as noted above, while the Tribunal is prepared to accept that the applicant may suffer from depression and anxiety, because the Tribunal finds the applicant has fabricated her past experiences of harm in China, it follows that the Tribunal does not accept that any mental health issues she has are attributable to her past experience in China and therefore does not accept that she has PTSD as a result of the past experiences.
The Tribunal was not, in my view, required to identify whether the applicant had experienced some other traumatic event, outside of her claimed experiences in China, that might have led to the PTSD diagnosis.
The Tribunal has not rejected the medical diagnoses provided by the experts. It has made findings of fact about the applicant’s claims as it was required to do in carrying out its statutory task, and in so doing, the Tribunal has weighed all the evidence before it. It has not simply focused on that evidence which is adverse to the applicant, relied on that evidence to make adverse findings, and then relied on those adverse findings to reject all other evidence as the applicant appears to believe.
The Tribunal also considered in detail whether the applicant would face a real risk of significant harm if she were returned to China as a result of her mental health conditions. This consideration is set out at [79] to [88] of the Tribunal’s reasons and spans some three pages. In the applicant’s written submissions, the applicant alleges that the Tribunal did not give proper, genuine and realistic consideration to the applicant’s mental health claims, and in particular claimed that the Tribunal failed to give proper, genuine and realistic consideration to the availability of mental health services, access to those services and the standard of such services in China.
This submission was based on AIJ19 where the Federal Court said at [70] and [71]:
70.Merely to “recognise” that “any” available mental health services “may” be of a lower standard involves, with respect, no active intellectual engagement with the hardship that might be caused to the applicant if he is returned in this respect. At the very least, the Assistant Minister was required to confront the fact that self-evidently the availability of mental health services, access to these and other relevant services, and the standard of such services (if any) which are available, would be impacted upon by the fact, as the Assistant Minister accepted, that Sudan is a “conflict-affected third world country”. Indeed, the fact that the material before the Minister does not reveal the nature and extent of the discrimination on the basis of which the applicant was granted the humanitarian visa, and that no finding is made in this regard, reinforce the impression that the finding by the Minister at [53] did not reflect in a meaningful way upon the human consequences involved and therefore with the applicant’s representations. In other words, how can it be found that the applicant would have similar levels of access to services as other Sudanese citizens “in the same position as [the applicant]” (whatever that may mean) without apparent consideration of any information about those services?
71.It follows that the Assistant Minister failed to engage in an active intellectual way with the applicant’s express and significant representations as to the risk of harm if returned to Sudan and the impact upon the applicant’s mental health. As a result, the Assistant Minister did not discharge his statutory duty to consider whether or not he has the requisite state of satisfaction to revoke the cancellation.
In AIJ19, the Federal Court reviewed a decision not to revoke the cancellation of the applicant’s visa on character grounds. I accept the Minister’s submission that this is a different context to the present matter. In the present matter the Tribunal was required to consider whether the applicant’s mental health gave rise to a real risk that she would face significant harm, as defined in s 36(2A) of the Migration Act, if she returned to China.
In any event, the Tribunal did consider evidence in relation to the mental health treatment that would be available to the applicant in China. After considering the limited medical treatment that the applicant has obtained in Australia and her ability to cope, the Tribunal then referred at [82] of its reasons to evidence about treatment for mental health conditions in China:
The Tribunal acknowledges reports, submitted on behalf of the applicant, that less than six per cent of people with anxiety and depression in China seek treatment and that there ‘a lack of trained mental health professionals, poor access to mental health services, low investment and high levels of stigma prevent individuals from accessing treatment’. The Tribunal notes that a recent report in the Economist notes that ‘most people with mental disorders in China never receive treatment’ before noting that ‘attitudes are beginning to change’ and the ‘use of antidepressants is rising fast’. The article continues:
The government is also making a greater effort. …Some provinces now give free medicine to people with schizophrenia, bipolar disorder and other conditions. In 2012, after decades of deliberation, China passed its first mental-health law. The bill called for yet more facilities, an increase in their staff and efforts to raise awareness of the issue in schools, universities and workplaces. It advised against confining sufferers against their will …. When the law was passed, about 80% of people in mental hospitals were there involuntarily, by some estimates.
But change is slow, and the rapid transformation of Chinese society is making it all the more difficult for many to get the care they need. The migration of tens of millions of people into cities has broken up families and left many sufferers undiagnosed or with no one to turn to; people often resist seeking help because they are too embarrassed….
New mental hospitals have opened and care has improved at some existing ones. But many such facilities still treat their patients as prisoners. A person familiar with them describes them as “unspeakable”. Others describe clanging metal doors, patients strapped to beds and staff who humiliate inmates….
Psychiatric resources remain largely devoted to preventing elements from threatening social stability. Any kind of unusual behaviour in public, not just actions that are physically threatening to others, can be deemed such a risk… Officials often round up people with mental disorders before important political events. Mental hospitals are also sometimes used to detain political dissidents who have no diagnosis of mental health problems.
The Tribunal then proceeded to make findings about the risk of the applicant being involuntarily detained in a psychiatric institution and whether any difficulties that the applicant may face in accessing or affording medical treatment in China amounted to significant harm. In so doing, the Tribunal has engaged in an active and intellectual assessment of the applicant’s claims based on her mental health.
Ground 2 does not establish jurisdictional error.
GROUND 3
Applicant’s submissions
The applicant submitted that the Tribunal decision was unreasonable because the Tribunal failed to conduct a review of the application in a timely manner and it failed to reasonably consider the applicant’s evidence in relation to the practice of Yiguandao which was banned in China.
In relation to the practice of Yiguandao in China, the applicant submitted that the Tribunal failed to acknowledge that Yiguandao was a banned sect at the time of the Tribunal’s decision, after finding that Yiguandao had been banned in China, but was not a banned sect for some time. The applicant also submitted that the Tribunal’s findings were inconsistent. On the one hand, the Tribunal found that country information indicated that there was no real risk that ordinary Yiguando practitioners would face significant harm for reasons relating to the religion. On the other hand, the Tribunal acknowledged that ‘some human rights abuses may never come to light and … considered the possibility that crackdowns against Yiguandao have occurred but have not been reported’ and further considered that there had been recent reports of crackdowns upon members of unregistered house churches and repression of Falun Gong practitioners.
In relation to the delay in conducting the review, the applicant submitted that no evident or intelligible justification for this delay was provided. The applicant also submitted that a reasonable inference was open that the Tribunal delayed holding the resumed hearing so that country information reports adverse to the applicant could be produced.
In oral submissions, Mr Turner took the Court to various country information that was before the Tribunal. This country information included:
(a)A Human Rights Watch report on China published in 2013 which contained information that government restrictions on journalists, bloggers and internet users continue to violate domestic and international legal guarantees of freedom of press and expression.
(b)An Amnesty International report on religious persecution in China, published on 18 August 2008, which referred to Bibles being confiscated by customs officials from a group of American Christians who had flown into Kunming airport. It reported that inside China millions of people are hindered from freely taking part in the religion of their choice, and that thousands are in detention or jail, or at risk of torture, for practising their religion outside of state sanctioned channels. Further, among the most harshly persecuted are Falun Gong practitioners, Uighur Muslims, Tibetan Buddhists and underground Christian groups.
(c)A Human Rights Watch submission to the UK Foreign Affairs Select Committee on the role of human rights in UK/Foreign and Commonwealth Office (FCO) policy towards China, dated 2 July 2013, which said that human rights violations in China are severe and systematic and that the government is responsible for large-scale human rights abuses and the denial of many fundamental freedoms. That report also contained information that (emphasis in original):
Freedom of religion is heavily restricted in China, with religious worship only possible in officially approved mosques, churches, temples and monasteries, and with religious appointments and publications all subject to government review. Unregistered spiritual groups such as Protestant “house churches” are deemed unlawful and the government subjects their members to fines and prosecutions. The Chinese government classifies the Falun Gong - a meditation-focused spiritual group banned since July 1999 - as an “evil cult” and arrests, harasses and intimidates its members.
(d)A Refugee Review Tribunal research response on China dated 19 October 2007 which contains information that:
(1)Yiguan Dao is a proscribed religion in the Peoples Republic of China, and was radically stamped out by the Communist government in the 1950s.
(2)Efforts are under way by Yiguan Dao groups outside China (principally in Taiwan) to make converts in the Peoples Republic and re-establish the religion there. The province of Fujian is a centre of such activity due to the strong presence of Taiwanese owned companies and joint ventures in this area.
(3) The Chinese authorities do crack down on such cells when they are discovered.
(e)The 2017 DFAT country information report in relation to which Mr Turner referred the Court to various passages about the treatment of Falun Gong practitioners.
Mr Turner submitted that the Tribunal’s findings about the risk of harm that the applicant would face if returned to China are inconsistent with the information in the DFAT report.
Given the numerous references Mr Turner made to information about Falun Gong in the DFAT report, I invited Mr Turner to make submissions on the relationship between Falun Gong and Yiguandao, and the submissions advanced to, and findings made by, the Tribunal in relation to this. Mr Turner did this in the written submissions filed on 3 November 2021, where he submitted that the applicant provided to the Tribunal submissions and media articles in relation to the treatment of Falun Gong practitioners, which establish the way in which Chinese authorities would treat religious minorities and, by implication, how the authorities would treat Yiguandao practitioners. Mr Turner also referred to [75] of the Tribunal’s reasons where the Tribunal indicated that it had considered the possibility that crackdowns against Yiguandao have not been reported and that the Tribunal discussed with the applicant ongoing reports of the repression of Falun Gong practitioners.
Minister’s submissions
The Minister submitted that the Tribunal decision was not unreasonable for the following reasons:
(a)Insofar as the ground relates to the delay in decision-making, there was no jurisdictional error for the reasons advanced in relation to ground 1.
(b)In relation to the Tribunal’s treatment of the applicant’s evidence and the allegation that the Tribunal’s reasoning was internally inconsistent, the Tribunal comprehensively addressed the applicant’s oral and written evidence, considered relevant country information and made dispositive findings.
(c)The applicant’s assertion that the Tribunal failed to acknowledge that, at the time of its decision, Yiguandao was a banned sect misstates the Tribunal’s reasons. The Tribunal accepted that Yiguandao was a banned sect at the time of its decision.
(d)Any suggestion that the Tribunal delayed the 2018 hearing for the purpose of obtaining country information adverse to the applicant and thereby acted in bad faith or for an improper purpose is not substantiated with particulars or necessary evidence. The assessment of the weight to be given to country information is a matter for the Tribunal.
In oral submissions, Mr Dennis submitted that the Tribunal had considered country information in detail and made dispositive findings. Mr Dennis submitted that the Tribunal drew a distinction between Falun Gong and Yiguandao and that the information Mr Turner referred to in the DFAT report referred to Falun Gong. Mr Dennis submitted that the Tribunal’s findings in relation to the harm the applicant would face as a practitioner of Yiguandao, based on country information, were reasonably open to it on the evidence before it.
Resolution
The principles relating to reasonableness in fact finding were summarised by the Full Court of the Federal Court in BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24 at [30], where McKerracher, Colvin and Jackson JJ said:
The following principles, as stated in Vo v Minister for Home Affairs [2019] FCAFC 108 at [43] (Derrington, Banks-Smith and Colvin JJ) when considering whether there had been jurisdictional error by the Administrative Appeals Tribunal by reason of a breach of the implied standard of reasonableness in making factual findings, apply equally to the review of a decision by the Authority:
(1)the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52], [135];
(2)where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]‑[47];
(3)unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [4]‑[5];
(4)it is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimant’s evidence (a conclusion to be reached with a high degree of caution): CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [40]‑[45] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30];
(5)generally speaking, the Tribunal has the authority to reach conclusions about the inferences that might be drawn from particular evidence or material;
(6)the Tribunal is not required to refer to every piece of evidence placed before it: ETA067 v The Republic of Nauru [2018] HCA 46 at [13];
(7) ...
(8)mere strong disagreement with factual reasoning does not establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40];
(9)a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable: SZVFW at [10], [82];
(10)a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others the category is not limited to such instances: SZVFW at [10], [59], [82], [89], [133]; and
(11)there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised: Hossain at [25], [30]‑[31].
Taking into account these principles, I do not consider that the Tribunal decision is unreasonable for any of the reasons advanced by the applicant, whether considered individually or cumulatively.
I do not find that the delay makes the Tribunal decision unreasonable. For reasons explained above, the delay does not, of itself, give rise to jurisdictional error. The only other way in which the delay is said to amount to unreasonableness in the Tribunal decision is that there is an inference that can be drawn that the Tribunal delayed holding the resumed hearing to await the publication of new country information reports. As indicated above, I do not consider that any such inference can be drawn. The Tribunal explained the reasons for the delay as being that the member was on leave for an extended period. It appears that additional country information became available during 2017. It was appropriate for the Tribunal to have regard to the updated country information. Indeed, in the case of the DFAT report, the Tribunal was required to take this into account pursuant to s 499 of the Migration Act and Ministerial Direction No 56.
I am not satisfied that there was anything unreasonable in the Tribunal’s treatment of the evidence in this case. There were two aspects to the applicant’s submissions about the Tribunal’s treatment of evidence. The first relates to the country information that the Tribunal chose to rely on. The second relates to the findings made by the Tribunal in reliance on country information.
In relation to the Tribunal’s choice of country information, it is well-established that the choice of, and weight to be given to, country information is a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. The Tribunal relied heavily on the 2017 DFAT report and a chapter by Ching-Chih Lin, an Assistant Professor in Chinese Religions Studies, in a book published in 2017. However, the footnotes in the Tribunal’s reasons confirm that the Tribunal considered a wide range of country information in relation to the Yiguandao religion and the treatment of practitioners. For the most part, the information that the Tribunal relied on was more specific in its consideration of Yiguandao and the treatment faced by its practitioners than was the country information that Mr Turner referred to at the hearing. There is nothing unreasonable in the Tribunal’s choice of country information.
The Tribunal’s findings in relation to the treatment of Yiguandao practitioners were open to it based on the country information before it. The applicant’s reference to information in the DFAT report regarding the treatment of Falun Gong practitioners and information more generally about human rights abuses or repression of religion in China does not give rise to any unreasonableness in the Tribunal decision, particularly given the Tribunal’s reliance on more specific information about Yiguandao. There was no reasonable analogy for the Tribunal to draw based on the treatment of Falun Gong practitioners in circumstances where the evidence before it showed that different religions were treated differently by the Chinese authorities. The one reference that the Tribunal made to Falun Gong in its reasons was by way of contrast with the treatment of Yiguandao practitioners. This can be seen at [75] where the Tribunal said:
While the Tribunal acknowledges that some human rights abuses may never come to light and has considered the possibility that crackdowns against Yiguandao have occurred but have not been reported, as discussed with the applicant there are recent reports of crackdowns upon members unregistered house churches on Christian house churches, as well as ongoing going reports of the repression of Falun Gong practitioners. In contrast, the last reported instances of Yiguandao believers being arrested and temples destroyed in the applicant’s home province of Fujian occurred in the 1990s. More recently there are reports that there has been a resurgence of Yiguandao in Fujian province on account of the strong presence of Taiwanese business interest in province.
At the hearing, Mr Turner referred to various findings of the Tribunal which he submitted were inconsistent with the DFAT report. These include:
(a)the Tribunal’s finding at [67] that the applicant would not face a real risk of significant harm if she read religious materials and prayed at home; and
(b)the Tribunal’s finding at [68] and [69] that she would not face harm as a low level Yiguandao practitioner.
These findings were not unreasonable, and they were not inconsistent with the information in the DFAT report. The parts of the DFAT report that the applicant relied on in advancing her submission were either general in nature or related to the treatment of Falun Gong practitioners.
In the particulars to this ground, the applicant asserted that the Tribunal found that Yiguandao had been banned in China but was not a banned sect for some time, without acknowledging that, at the time of the Tribunal’s decision, it was again a banned sect. This is not an accurate reflection of the Tribunal’s reasons and does not amount to unreasonableness in the Tribunal decision. In summarising the country information, the Tribunal noted at [25] that independent information indicated that Yiguandao was prohibited from the 1950s and, although it is still illegal, recent country information indicates that it occupies a grey area and is no longer listed as an evil cult. At [26], the Tribunal referred to DFAT’s assessment that, as Yiguandao is an illegal organisation, members coming to the attention of the authorities are likely to face a degree of harassment, but DFAT is unable to verify the extent or severity of such harassment. At [28], the Tribunal referred to Professor Lin’s report that Chinese authorities did not include Yiguandao on official lists of evil cults issued in 2000 and 2005, indicating that the attitude of the authorities has changed.
In written submissions, the applicant referred to [76] of the Tribunal reasons where the Tribunal referred to Yiguandao ceasing to exist in mainland China after it was banned in 1951, but being re-established as an underground organisation through the efforts of missionaries especially from Taiwan and Hong Kong. It is not clear the basis on which this finding is said to be unreasonable. It is a summary of one aspect of the factual information that was before the Tribunal. No error is established on the basis of any findings by the Tribunal in relation to whether or not Yiguandao was banned at any given time.
I have also reviewed the Tribunal’s reasons more generally and I am satisfied that the findings made by the Tribunal in relation to each of the applicant’s claims were open to it on the evidence before it.
Ground 3 is not established.
CONCLUSION
Given that I have found that the applicant has not established jurisdictional error, it follows that the application is dismissed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 March 2022
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