CEH20 v Minister for Immigration

[2020] FCCA 2509

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEH20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2509

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal failed to take into account a relevant consideration –whether the Tribunal made a decision that was legally unreasonable – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 424A, 467, 501

Applicant: CEH20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1176 of 2020

Judgment of: Judge Street

Hearing date: 7 September 2020

Date of Last Submission: 7 September 2020

Delivered at: Sydney

Delivered on: 7 September 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Ms C Saunders, MinterEllison, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1176 of 2020

CEH20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction, under s 476 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 April 2020, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa. 

2. The applicant was found to be a citizen of China and her claims were assessed against that country. 

3. The applicant first arrived in Australia in 2009 on a Visitor (subclass 676) visa and departed Australia on that visa later in 2009. The applicant next arrived in Australia on a Provisional Partner (subclause 309) visa in 2009 and then departed Australia in 2010. The applicant next arrived in Australia in 2011 on a Provisional Partner (subclass 309) visa. In 2012, the applicant was granted a Spouse (Migrant) (subclass 100) visa. In 2013, the applicant again departed Australia on a Spouse (Migrant) (subclass 100) visa and returned to Australia a month later. In 2019, the Spouse (Migrant) (subclass 100) visa was cancelled under s 501 of the Act. 

4. On 5 April 2017, the applicant applied for revocation of the cancellation.  On 14 September 2017, the cancellation was decided not to be revoked.  The applicant was released from criminal detention on 16 September 2017 and placed into immigration detention. 

5. The applicant applied for review of the non-revocation of cancellation on 17 September 2017. The decision was affirmed by the Tribunal on 27 November 2017. The applicant applied for a judicial review on 11 December 2017. 

6. A Federal Court upheld the non-revocation of the cancellation of the Spouse (Migrant) (subclass 100) visa. On 9 August 2018, the applicant applied to the Full Court of the Federal Court for review, which upheld the non-revocation of cancellation, and the High Court upheld the decision of first instance. 

7. The applicant unsuccessfully applied for special leave in relation to the non-revocation of the cancellation of the Spouse (Migrant) (subclass 100) visa by the decision of the Full Court of the Federal Court. 

8. It was not until 28 November 2019 that the applicant applied for a Protection visa. 

9. The applicant claimed to fear harm on the grounds that she would be subject to ‘double jeopardy’ in China, in respect of her convictions of offences relating to the smuggling of illegal weapons and a sentence to imprisonment for one year and two years, respectively. The applicant also claimed to fear harm by reason of being a Falun Gong supporter. 

10. On 17 February 2020, the Delegate found that the applicant failed to meet the criteria for the grant of the Protection visa.

11. The applicant applied for review on 24 February 2020. The applicant appeared before the Tribunal to give evidence and present arguments from the immigration detention centre on 15 April 2020. 

12. The Tribunal, in its reasons, identified the background to the Protection visa application and set out the relevant law including in an attachment incorporated by pagination in the Tribunal’s reasons. 

13. The Tribunal referred to the applicant’s claims that she would be executed by the Chinese authorities for her role in importing a quantity of prohibited weapons that attracted attention from Hong Kong and Chinese authorities. The applicant referred to the Chinese government assisting her arrest in Australia and the Tribunal referred to it being the autonomous Hong Kong authorities that assisted the arrest, because the prohibited goods arrived in Australia directly from Hong Kong. 

14. The Tribunal referred to the articles in the Chinese Penal Code that do give a discretion to re-prosecute in matters of offences committed by Chinese citizens abroad. The Tribunal referred to country information in relation to where this would be likely to occur and identified five categories in that regard, one of which included that the offence is unusually serious. 

15. The Tribunal also referred to the applicant’s claims that she had lost her job because of her association with the movement known as Falun Gong. 

16. The Tribunal took into account that the applicant claimed that all of this happened before the applicant was able to depart China legally for Australia in 2009. The Tribunal referred to the applicant returning to and departing from China several times since then without claimed incident. 

17. The Tribunal referred to a letter provided by the applicant in support of her claims and, also, referred to the evidence given by the applicant’s husband that she would be arrested and charged on return. The Tribunal expressly identified the nature of the weapons that had been smuggled as being air rifles, handguns, pistols, knives and spring loaded pistols, which were not real firearms, as well as boxes of pellets and a stun control device and some antipersonnel sprays, extendable batons and knuckle dusters. 

18. The Tribunal referred to the extensive body of country information in relation to double jeopardy. 

19. The Tribunal referred to the findings made by the Delegate. 

20. The Tribunal referred to the mandatory cancellation decision that had been the subject of the earlier proceedings, in which the applicant’s husband had been found to be an unreliable witness, as well as expressly referring to the provisions of the Criminal Law of the People’s Republic of China and Department of Foreign Affairs and Trade (“DFAT”) country information, and again citing the five grounds upon which there may be re-prosecution, including a reference to the offence being unusually serious, and referred to the submissions advanced on behalf of the applicant. 

21. Further the Tribunal expressly identified the content of Article 125 in Chapter II of the Criminal Law of the People’s Republic of China which relevantly provides as follows: 

    Article 125 Whoever illegally manufactures, trades in, transports, mails or stores any guns, ammunition or explosives shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death.

    Whoever illegally trades in or transports nuclear materials shall be punished according to the provisions of the preceding paragraph.

    Where a unit commits any of the crimes mentioned in the preceding two paragraphs, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of the first paragraph.

22. The Tribunal correctly identified that in order for the offence to attract the death penalty the circumstances must be serious, and recognised that the requisite seriousness was not codified. The Tribunal regarded the express reference to trafficking in nuclear material to be something that would be regarded as serious, and that the applicant’s activities fall far short of that. 

23. The Tribunal also took into account the factors identified in relation to triggering re-prosecution in China being rare. 

24. The Tribunal referred to the applicant as having served three years in jail abroad, whereas the applicant had been subject to a sentence for three years. That was an immaterial error of no significance in relation to the Tribunal’s reasons.

25. The Tribunal did take into account that re-prosecutions might be called for where the sentences are deemed to be inadequate by Chinese standards.

26. The Tribunal also took into account that the applicant has not owned or been in possession of firearms, either real or replica, in China. 

27. The Tribunal found that the crimes of smuggling are not on their own considered to be political crimes, taking into account country information. 

28. The Tribunal also took into account country information in China, including a sentence of three and a half years handed down in a case involving possession of nine air rifles. 

29. The Tribunal also sought to explore with the applicant whether there had been any evident pressure put on the applicant’s family by Chinese authorities. The Tribunal took into account that the applicant described no such pressure.

30. The Tribunal took into account as illogical that if the applicant were wanted for prosecution or re-prosecution upon return to China, the authorities would not need to rely upon an involuntary tip off from her brother, particularly as the applicant’s husband asserted that her name had been placed on a black list. 

31. The Tribunal made reference to the applicant’s family and sought to explore with the applicant any pressures faced by her family in China and expressly put to the applicant that there is independent country information indicating that when the Chinese authorities want someone to come back to China to face prosecution they put significant pressure on the person’s family. The Tribunal took into account the submissions advanced seeking to contend the contrary of that proposition, as well as exploring with the applicant that her crime was less serious than smuggling weapons into China and took into account that smuggling of weapons no longer carries the death penalty in China, and raised with the applicant issues concerning whether her crime would be regarded as a political crime and explored with the applicant her association with Falun Gong. 

32. The Tribunal also took into account and raised with applicant the prevalence of fraudulent documents in China, as well as country information in relation to Falun Gong. The Tribunal took into account the applicant had been able to depart China three times and re-enter twice notwithstanding her claimed circumstances. The Tribunal did not accept the applicant’s explanation as a satisfactory explanation for the lack of interest by the Chinese authorities and her ability to pass through the airport security in China. 

33. The Tribunal took into account that the applicant told the Tribunal that she no longer makes any claim regarding fear of being persecuted in China for reasons of Christianity.

34. The Tribunal expressly found that the applicant does not face a real chance of being persecuted in China for reasons of involvement with Christianity. 

35. The Tribunal was not satisfied that the applicant is a genuine Falun Gong supporter or practitioner and was not satisfied that she would be imputed to be one on return to China.

36. The Tribunal took into account the cumulative concerns of the Tribunal in respect of the applicant’s alleged involvement with the Falun Gong movement. Firstly, the Tribunal did not accept the applicant’s contention that she would have got into trouble as a citizen of China for helping a Falun Gong member. Secondly, the Tribunal took into account that the applicant never said anything about actually printing Falun Gong materials. Thirdly, the Tribunal took into account in relation to the applicant’s claim of proselytising Falun Gong that she never went through a process of weighing the risk of prosecution with what she might get out of the enterprise. Fourthly, the Tribunal took into account that the applicant had provided inconsistent information as to whether she had stopped printing pamphlets. The Tribunal further took into account that the applicant had not heard from the Public Security Bureau in China.

37. Taking into account the Tribunal’s concerns, the Tribunal gave no weight to the letter, in respect of alleged roles in Falun Gong, and gave no weight to the other alleged evidence of contact made by Chinese officials with the applicant’s family, and did not accept, in the event of the authorities being aware of the specifics of the applicant’s smuggling, that they view the applicant’s offences as serious or more serious or political because of the Falun Gong factor. 

38. The Tribunal did not accept that the Chinese authorities have already shown any interest in the applicant or her whereabouts, let alone the offences abroad. 

39. The Tribunal did not accept that the applicant had become known to the Chinese authorities or that she had a profile that would cause the authorities to treat the applicant as being a more serious offender so as to give rise to her being re-prosecuted after she returns to China. 

40. The Tribunal was not satisfied on the evidence before the Tribunal that the Chinese authorities have any evidence or have shown any concern to the effect that the applicant is connected with procuring illegal weapons in China or smuggling them out of that country. 

41. The Tribunal did not accept that the applicant faces a real chance of being re-prosecuted in China. 

42. The Tribunal found that the chance of the applicant being re-prosecuted in China as remote and took into account that the applicant is not a high profile person in China and there has been no pressure on her family to encourage her to return. The Tribunal also took into account that she pleaded guilty to the offending in Australia and had already been handed a three year custodial sentence. The Tribunal also took into account the absence of aggravating factors, such as a substantial amount of publicity or embarrassing the Chinese authorities or whether there were political factors, which the Tribunal found did not exist in this case. 

43. The Tribunal found that the questioning and monitoring that the applicant may face in China would not amount to persecution. 

44. The Tribunal was not satisfied that the applicant faces a real chance of being persecuted in China in the reasonably foreseeable future for any of the reasons in s 5(J)(1)(a) of the Act, and found that the applicant does not have a well-founded fear of persecution. 

45. The Tribunal found that the applicant is not a person in respect of whom Australia has a protection obligation under s 36(2)(a) of the Act. 

46. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk the applicant will suffer significant harm. 

47. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 18 May 2020. On 2 July 2020, a Registrar of the Court made orders, giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. 

2. The applicant did advance written submissions, which the Court has taken into account, in support of the three grounds in the applicant’s application.   

3. The applicant maintained that the crimes she had committed in relation to her smuggling of weapons into Australia was serious and would be treated by the Chinese authorities as serious. This is, in substance, an invitation to this Court to engage in merits review. 

4. The Tribunal expressly considered the circumstance of the applicant’s offence and gave logical and rational reasons in support of the adverse finding on the applicant’s claims of a risk of double jeopardy or re-prosecution. Those adverse findings cannot be said to lack an evident and intelligible justification, including a low profile of the applicant, the applicant not falling into the categories identified in relation to re-prosecution, and the absence of pressure being placed on the applicant’s family for the purpose of her to return to be prosecuted. 

5. The applicant’s contention that the crime she committed was serious does not give rise to any jurisdictional error and, merely reflects a disagreement with the adverse findings by the Tribunal, which were open for the reasons given by the Tribunal. 

6. The applicant also made reference to her role in Falun Gong, which the Tribunal rejected on credibility grounds, having given logical and rational reasons, as summarised above, in support of those adverse findings. 

7. There was a minor typographical error in the Tribunal’s reasons in relation to country information at one point, referring to ‘usually serious’ which clearly was a typographical error. The Tribunal correctly identified in its reasons that the correct consideration was ‘unusually serious.’

8. The error in relation to the reference to the country information which the Court has identified as a typographical error does not give rise to any possible different outcome in the review and does not amount to a jurisdictional error. 

9. The applicant also referred to her son and not wanting to leave her family and that she did not want to go back and said that she would not go back.  The applicant also submitted to the Court that she was sorry for what she had done in relation to the smuggling. The applicant’s submissions in this regard, invite the Court to determine the matter on compassionate or discretionary grounds. The Court has no power to do so. 

10. Nothing said by the applicant orally identified any jurisdictional error by the Tribunal. 

The grounds

1. The grounds in the application are as follows:

   1.The tribunal erred and misconstrued a claim advanced by the applicant, the amount of time served in prison for her offending in Australia that tantamount to a failure to consider claim made by the applicant at [46]. 

   See, Minister for immigration and citizenship v SZKRT [2013] FCA 317 [113] Robertson J

   2.The decision of the tribunal is legally unreasonable and / or irrational and / or otherwise illogical when construing Article 125 of the criminal law of the People’s Republic of China at [46]

   Particulars

   a.   that the applicant’s criminality in Australia would not be regarded as serious because the applicant did not involved in the trafficking of Nuclear materials, such finding lacks an intelligible justification and the tribunal committed the fallacy of a “red herring”. The introduction if irrelevant topic is to diverts attention away from Article 125 of the Chinese criminal law thereby fall into jurisdictional error.

   b.   The Tribunal found that the chance of the applicant being re-prosecuted in china is remote at [94] and that there has been no pressure exerted on the applicant’s family by the china authorities to encourage her to return at [94]. This reasoning is devoid of intelligible justification in circumstances where the Australian government is in the process of deporting the applicant to China. In this context, there is no necessity for the Chinese authorities to place pressure on the applicant’s family in an attempt to force the applicant to return to China.

   See, Minister for immigration and citizenship v SZMDS [2010) HCA; 240 CLR 611, Crennan and Bell JJ at [135]

   3.Tribunal denied the applicant procedural fairness the entitlement to rebut (by way of submissions) concerning the South China morning post Article, where the exercise of a statutory power attracts the requirements for procedural fairness. By relying upon the impugned article to form certain adverse conclusions at [46], [53], & [94] of the tribunal decision.

   See, Commissioner for Australian capital territory revenue v Alphaone Pty ltd (1994) 94 FCR 576 at 591-592.

Ground 1

1. In relation to ground one, it is apparent that the Tribunal’s error in relation to the applicant having served three years was not material, and the Tribunal correctly identified later in its reasons that the applicant had been the subject of a sentence amounting in total to three years. The error was of no significance and could not possibly have given rise to a different outcome in relation to the conduct of the review. 

2. No jurisdictional error arises by reason of the reference to the applicant having served three years in prison. 

3. No jurisdictional error is made out by ground one. 

Ground 2

1. In relation to ground two, the Tribunal expressly considered Article 125 and made adverse findings in relation to the applicant’s conduct not falling into the category of serious because it did not involve an offence of the kind such as trafficking nuclear materials and took into account country information in relation to sentencing in China, and the circumstances in which there would be a risk of re-sentencing, and found that the applicant did not fall within any of those categories. 

2. The Tribunal’s finding that the applicant’s offence was not of the kind identified in the country information that would give rise to a real risk or real chance of re-prosecution of double jeopardy, was open for the reasons given by the Tribunal as summarised above. 

3. The absence of pressure on the applicant’s family for her to return to be prosecuted was also a logical and rational matter for the Tribunal to take into account and was an issue upon which the Tribunal raised the same with the applicant and took into account the submissions. 

4. The Tribunals reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence in relation to the real chance or real risk of being prosecuted or re-prosecuted in China. This ground, in substance, is an invitation to engage in merits review. 

5. The taking into account of nuclear materials as being an example of the unusually serious offence that might give rise to re-prosecution was a logical and rational matter to take into account, including in relation to the seriousness of the applicant’s offence. 

6. No jurisdictional error is made out by ground two.

Ground 3

1. In relation to ground three, it was a matter for the Tribunal to determine what country information it took into account and what weight to give the same. The Tribunal was under no obligation, under s 424A(3) of the Act, to put the country information to the applicant. 

2. Accordingly, no procedural unfairness arises by reason of the reference to the article in the South China Morning Post. 

3. Accordingly, no jurisdictional error is made up by ground three. 

4. As no jurisdictional error is made out by the application, the application is dismissed. 

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 24 February 2021