CDH17 v Minister for Immigration

[2021] FCCA 1016

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDH17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2021] FCCA 1016

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal had not advised the applicants of its doubts regarding their claims, had prejudged their claims and had failed to advise them that a certificate under s.438 of the Migration Act 1958 had been served on it and by reason that the applicants had been unable to present their claims.

Legislation:

Migration Act 1958 (Cth), ss.36, 417, 424A, 425, 438, 474

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Johnson v Johnson (2000) 201 CLR 488
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

First Applicant: CDH17

Second Applicant: CDI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1535 of 2017 

Judgment of: Judge Cameron

Hearing date: 10 and 17 March 2021

Date of Last Submission: 17 March 2021

Delivered at: Sydney

Delivered on: 14 May 2021

REPRESENTATION

The First Applicant appeared in person

Counsel for the First Respondent: Mr T. Reilly

Solicitor for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1535 of 2017

CDH17

First Applicant

CDI17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants are citizens of China.  The first applicant arrived in Australia on 21 August 2007 and gave birth to the second applicant in Australia on 1 September 2014.  On 30 September 2010 the first applicant lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that she feared persecution in China because of anti-government activity associated with her former employment.  On 12 January 2011 the first applicant’s application was refused by a delegate of the first respondent (“Minister”) and that decision was affirmed by the Refugee Review Tribunal (“RRT”), a predecessor of the second respondent on 13 May 2011. 

2. On 28 February 2014, and following the judgment of the Federal Court of Australia in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the first applicant lodged a further protection visa application with the Department that included new claims to fear persecution because she had become a Christian and had “violated the birth control policy”. That application was updated on 19 January 2015 by the inclusion of the second applicant who had been born in the meantime.

3. On 12 January 2015 the first applicant’s application was refused by a second ministerial delegate and on 26 February 2015 the second applicant’s application was refused by the same delegate (“Delegate”).  On 12 February 2015 and 31 March 2015 respectively, the first and second applicants applied to the Administrative Appeals Tribunal (“Tribunal”) for review of those departmental decisions.  The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision concerning them.

4. In this judicial review proceeding the Court cannot rehear the applicants’ applications for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. In her first application for a protection visa, dated 29 September 2010, the first applicant stated that she had come to Australia to study and “to escape from persecution by the Chinese government”.  In that regard, she alleged that her family had struggled financially but she had nevertheless been able to achieve excellent results at school which led to her teacher offering to help her to study overseas.  After declining that offer, the first applicant went to work in a factory but lost her job following a workplace dispute and her related complaints to authorities led to her being harassed by the local police who had been bribed by the factory management.  This set of circumstances led to her finally accepting her teacher’s offer of help.  He had already obtained a passport for her, before she went to work in the factory, and he subsequently secured her a visa and bribed an airport official so she could leave China.

2. As summarised by the Minister in his written submissions, in the second application the applicants relevantly made the following further claims:

   5)The applicant claimed that after she arrived in Australia she converted to Christianity and also fell pregnant.  Her family attended a Local Church in China and sent an elder to Australia to baptize the applicant in 2012.  The applicant was unable to find a Local Church in Australia and kept a spiritual connection online with her original church.  In 2013, the applicant’s mother was arrested by security police in China and was accused of attending unauthorised church activities and preaching the doctrines of the cult.  She later learned that her phone conversations were tapped and people who were arrested, were questioned about the applicant’s activities in Australia.  The applicant’s website was attacked by hackers and her gospel messages “disappeared”.  The applicant’s mother was detained for three weeks for her connection with a Taiwanese priest.  Her cousins were also interrogated by security police for three months.  The applicant also claimed to fear harm for violating the birth control policy and claimed she could not afford the penalty for this breach.

3. I adopt that summary.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under s.36(2)(aa) of the Act. Section 36 of the Act relevantly provides:

   36 Protection visas—criteria provided for by this Act

   …

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

   …

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   …

   (2A)A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

2. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:

   8)The Tribunal did not find the applicant to be a credible witness.  The Tribunal found the applicant had provided “confusing and contradictory evidence” about her and her family’s involvement in religion in China before 2014.  It found the applicant had also provided a confusing account of her on-line connection with local Church groups in Taiwan and in Fujian Province.

   9)The Tribunal found the applicant was not credible when discussing her reasons for applying for a student visa to come to Australia.  It did not accept that the applicant and her mother had no involvement in obtaining her passport and student visa and also did not accept that her school teacher outlaid a considerable sum for the passport and visa applications.  The Tribunal did not find it credible that she had no further contact with the teacher since arriving in Australia.  The Tribunal did not accept that the applicant came to Australia with the sole intention of studying which significantly undermined her overall credibility.

   10)The Tribunal considered the applicant’s explanation for the delay in lodging her first protection visa application but found the delay in applying for protection significantly undermined her credibility.

   11)The Tribunal accepted the applicant might have come to the attention of authorities before she left China, but did not find her claim that this was because of her role in a workplace dispute in 2006 to be credible.  It observed that the applicant had not provided any other explanation for the claimed detention.  The Tribunal did not accept that any involvement as claimed by the applicant would be of any ongoing interest to authorities or to the then owner of the factory.  The Tribunal found the applicant’s claim to have engaged in anti-Government activity was made solely to enable the applicant to remain in Australia.  The Tribunal was not satisfied there was a real risk the applicants would suffer significant harm because she engaged in anti-Government activities in China more than ten years ago.

   12)The Tribunal observed there was “considerable confusion” when discussing her involvement with the Local Church as the applicant had “considerable difficulty” when her statement from February 2014 was read back to her.  The Tribunal found the applicant had “no recollection” of what was claimed and said about her religious activity.  The Tribunal extensively questioned the applicant at two hearings about her religion and discussed country information regarding the Local Church in Fujian Province.  The Tribunal accepted that the applicant was advised by an agent in 2010 that she had to have a claim involving religion and a child before she could successfully apply for protection and also accepted that the applicant had demonstrated some knowledge of Local Church beliefs and practices.  The Tribunal accepted that a person’s belief is a “deeply personal issue” and that no two people may experience a conversion or reach an understanding of religion in the same way.  The Tribunal accepted that the applicant was a participant in Local Church gatherings in Sydney.

   13)The Tribunal did not accept the applicant’s account of her baptism in 2012 by a visiting evangelist from Fujian Province and did not accept the applicant’s family in China was involved with the Local Church.  It observed the applicant had provided “inconsistent and confusing” statements about that involvement.  The Tribunal found that country information did not support the applicant’s claim that authorities in her home village had cracked down on Local Church activity and that her mother was detained.  On the basis of inconsistencies in the applicant’s claims, the Tribunal did not accept the applicant’s family had come to the attention of the authorities for their membership of the Local Church in their home village or that the applicant’s family held Local Church gatherings in the family home.  The Tribunal found these claims were made to strengthen the applicant’s claims for protection.  The Tribunal accepted the applicant may continue her attendance at Local Church gatherings in person if she returned to China and found that simple attendance at these gatherings in Fujian would not bring her to the adverse attention of authorities.  The Tribunal was not satisfied there was a real risk the applicants would face significant harm if the applicant attended Local Church gatherings, in person or on-line, in China.

   14)The Tribunal also extensively questioned the applicant on her claim to fear harm for contravening the family planning laws and discussed relevant country information.  The Tribunal accepted the applicant gave birth to a child out of wedlock and that she had contravened Chinese family planning laws.  The Tribunal accepted that these laws were laws of general application and gave weight to country information that indicated that it was likely the applicant would be subject to a fine on return, but the fine should not be regarded as persecutory.  The Tribunal also gave “considerable” weight to country information which indicated that if parties could not pay, then the fine would not be enforced as Chinese civil enforcement rules required courts to allow parties to retain a basic minimum income.  The Tribunal accepted and gave weight to country information that indicated that children whose unauthorised birth might previously have gone unregistered can now apply for a hukou irrespective of whether relevant Social Compensation Fees have been paid and that children born out of wedlock enjoy the same rights as children born in wedlock.  The Tribunal was satisfied that there was not a real risk the applicants would suffer significant harm because she would have to pay the social compensation fee if she returned to China.

   15)The Tribunal considered the applicant’s fear of harm because she applied for protection in Australia and gave weight to the fact that Chinese authorities renewed her passport in 2012.  The Tribunal found this would not have been possible if she was of adverse interest to Chinese authorities for any reason at that time.  The Tribunal observed that millions of Chinese live and work overseas and that as the holder of a valid passport returning from Australia the applicant would not be of any adverse interest to Chinese authorities. 

   16)The Tribunal considered the applicant’s claims cumulatively but noting the issues with her overall credibility, the Tribunal found there were no grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk the applicants would suffer significant harm.  The Tribunal concluded that the applicants did not satisfy the complementary protection criterion. 

   (References omitted).

THE PROCEEDING IN THIS COURT

1. In the application commencing this proceeding the applicants alleged:

   1.The Administrative Appeals Tribunal (the Tribunal) failed to provide a genuine opportunity for me to give my evidence in support of my claims for a protection visa and particularly failed to give me a genuine opportunity to present my arguments against the concerns raised by the Tribunal in relation to my application.

   2.The Tribunal stated in paragraph 121 of the decision record that my account of my baptism was “not accepted as credible”, therefore, it undermined my entire claim to fearing persecution for my Christian belief and my active involvement in the local church (a.k.a “shouters”).  However, during the hearing, the Tribunal member has no questions regarding my account of being baptized by a visiting evangelist from Fujian province, even in the decision record in paragraphs 99 and 100, the Tribunal does not indicate having any concerns with my claims.  How, then, can the Tribunal simply “not accept as credible” my claims without any reasons? The Tribunal had could have questioned me regarding this matter during the hearing or in writing afterward yet the Tribunal did ont [sic].  I was denied many opportunities to comment on or respond to the Tribunal’s concern.  It misled me into believing the Tribunal accepted my claims as truth and did not require further clarifications.  Claiming what I said is incredible without showing any signs of doubt during the hearing and without providing any reasons after the hearing is unfair.

   3.I believe that the Tribunal must err of law.  I sincerely hope that the Tribunal’s decision could be quashed by your honour.

2. At the hearing of this application the applicants submitted that the Tribunal had not given them a genuine opportunity to provide evidence in support of their claims, did not raise with them the doubts it held as to the genuineness of the first applicant’s baptism and had prejudged their account. After the Minister raised the issue, they also submitted that the Tribunal had failed to raise with them a s.438 certificate that had been served on it by the Minister.

3. At the time the s.438 certificate was served the Act relevantly provided:

   438Refugee Review Tribunal’s discretion in relation to disclosure of certain information etc.

(1)This section applies to a document or information if:

(a)the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

…

Ground 1

1. The allegation that the Tribunal had not given the applicants the opportunity to provide it with evidence or present arguments was not developed in argument and no written submissions were filed in support of it, or the applicants’ case more generally.  The only evidence of what occurred at the Tribunal hearing is the summary of that hearing found in the Tribunal’s reasons for decision which, amongst other things, records that the hearing was held over two days because the first listing was adjourned after some time at the first applicant’s request for health reasons.  The Tribunal’s record of that first listing indicates that the hearing commenced at 10.00am on 8 March 2017 but its duration is not recorded in any document in the Court Book, which was Ex A.  The Tribunal’s record of the second listing indicates that that part of the hearing commenced at 8.40am on 13 April 2017 and concluded at 10.45am.  The Tribunal’s hearing records also indicate that the applicants were accompanied by their adviser on both occasions. 

2. Those details point to the applicants having had sufficient opportunity and ability to have presented their case to the Tribunal. It should also be noted that before its hearing the Tribunal had given the applicants a letter pursuant to s.424A of the Act putting certain of its concerns to them and that a statutory declaration was provided in response. Section 424A relevantly provides:

   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; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   …

1. Most importantly, a review of the Tribunal’s summary of its hearing does not bear out the applicants’ allegation that they were not given an opportunity to present their evidence or arguments.  It records that their claims were discussed methodically and it does not suggest that the applicants were prevented from or otherwise unable to put before the Tribunal what they wanted it to consider.

2. It should further be noted that in paragraph 161 of its reasons the Tribunal recorded what appears to have been an exchange at the end of its hearing:

   The Tribunal asked if there were any other reasons she feared she would be harmed in China.  The applicant said there was not.  The Tribunal asked if she wanted to add anything.  She did not.

   As already noted, the applicants were represented at the hearing by their migration agent and there is no suggestion in the Tribunal’s decision record that the representative sought to add anything in response to the Tribunal’s invitation or ever complained that the applicants had been prevented from making their case as they wished. 

3. Finally, the Minister suggested in his written submissions that this ground of the application might be an allegation of breach of s.425 of the Act. That section relevantly provides:

   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.

   …

   It is not apparent that the applicants were unaware of the issues likely to be determinative of the Tribunal review, particularly the overarching issue of the first applicant’s credit which had been in issue before the RRT when it was considering the original claims and also before the Delegate when he was considering the later claims.

Ground 2

1. As to the second of the allegations, it is correct that at paragraph 121 of its reasons the Tribunal stated that it did not find the first applicant’s account of her baptism credible.  However, that finding had no particular relevance to the determinative issue to which it related, namely the genuineness of the first applicant’s claim to have become a Christian and a participating member of the Local Church.  What the Tribunal relevantly said in that connection was that it accepted that the first applicant was a participant in Local Church gatherings in Sydney and might wish to continue her attendance at Local Church gatherings in person rather than on-line if she was to return to China.  It went on to find that participation by the first applicant in Local Church gatherings in Fujian would not bring her to the attention of the authorities.

2. In any event, subject to the requirements of ss.424A and 425 of the Act, the Tribunal’s thoughts on the first applicant’s allegation regarding her baptism, or indeed other arguments or evidence before it, did not need to be advised to her in advance of its decision on the question: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165-166 [47]-[48]. In that regard, the Tribunal’s decision record, which is the only evidence before the Court of what occurred at the Tribunal hearing, does not suggest that the Tribunal gave the applicants any reason to believe that it accepted their allegations concerning the first applicant’s baptism, such that a possible contrary conclusion needed to be foreshadowed to them.

Ground 3

1. The third contention the applicants advanced at the hearing was to the effect that the Tribunal had decided before hearing from them that the first applicant was not to be believed. In addresses the first applicant submitted that during the Tribunal hearing she felt, on the basis that the Tribunal member did not discuss his views with her, that he had already made up his mind. However, subject to compliance with ss.424A and 425 of the Act, to have conducted the review in that manner was not erroneous and to have done otherwise would have been to run the very risk of apparent prejudgment of which the applicants now complain: SZBEL v Minister for Immigration at 166 [48]. 

2. The fact that the Tribunal may not have raised with the applicants matters which the law did not require it to raise would not, without more, be a proper basis to find that a fair minded lay observer with an understanding of the facts of the review might suspect that the Tribunal was not bringing an open mind to the review:  Johnson v Johnson (2000) 201 CLR 488. But in any case, the decision record makes it perfectly plain that the Tribunal did raise with the applicants its concerns regarding their allegations and invited responses.

Ground 4

1. In the third allegation of the application the applicants made an unspecified allegation of error of law on the part of the IAA.  That allegation was in substance a submission based on the two preceding allegations and need not be considered further.

Ground 5

1. The final ground, which emerged for the first time in the Minister’s pre-trial written submissions, concerned the s.438 certificate which the Minister served on the Tribunal and which he correctly concedes was invalid. The certificate referred to certain documents, namely:

   … folios 147-150 and 161-165 …

2. The documents in question relate to the first applicant’s application for ministerial intervention under s.417 of the Act, after she had been unsuccessful before the RRT, and the outcome of that request. Section 417 relevantly provides:

   417 Minister may substitute more favourable decision

   (1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

   …

   The Minister submitted that it could be inferred from the absence from the Tribunal’s reasons of any reference to the certificate and the documents it mentioned that the Tribunal had not taken those documents into account in reaching its decision on the review.  He went on to submit that even if the Tribunal had had regard to those documents, its failure to disclose the certificate to the applicants had had no material effect on the outcome of the review and so that failure did not amount to jurisdictional error:  Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

3. The only evidence of the information contained in the documents referred to in the certificate was the affidavit of the Minister’s solicitor, Ms Zinn and the documents themselves which, although not formally tendered, were discussed as if they had been. Most relevantly, the documents recorded the first applicant’s account of events in China said to justify a fear of persecution there, the RRT’s findings on her allegations and the RRT’s decision on its review. Those matters were already known to the applicants and to the Tribunal before the certificate was given to the Tribunal and so their repetition in the documents referred to in the certificate could have had no effect on the outcome of the Tribunal’s review. Otherwise the documents dealt with the applicants’ visa status, the history of their visa applications and administrative matters associated with the s.417 request and none of those matters could have had any effect on the outcome of the Tribunal’s review either.

4. For those reasons, whether or not the Tribunal had had regard to the certificate and the documents when deciding the review was immaterial to the outcome of the review, with the consequence that jurisdictional error is not apparent in that regard.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 14/05/2021