CHT15 v Minister for Immigration
[2016] FCCA 2030
•16 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHT15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2030 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – reconstitution of the Tribunal during the review and following three hearings – whether a further hearing was required considered – multiple applicants for protection – whether the applicants’ religion was properly considered – no jurisdictional error. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.19D Migration Act 1958 (Cth), ss.36, 48A, 422B, 424A, 425 |
| Cases cited: CIS15 & Ors v Minister for Immigration & Anor [2016] FCCA 1504 Minister for Immigration v SZMDS (2010) 240 CLR 611 SZQWV v Minister for Immigration[2012] FCA 817 |
| First Applicant: | CHT15 |
| Second Applicant: | CHU15 |
| Third Applicant: | CHW15 |
| Fourth Applicant: | CHX15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2997 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2016 |
REPRESENTATION
| Counsel for the Applicants: | Mr A Edwards |
| Solicitors for the Applicants: | Salvos Legal, pro bono publico |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 5 August 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2997 of 2015
| CHT15 |
First Applicant
| CHU15 |
Second Applicant
| CHW15 |
Third Applicant
| CHX15 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants are the members of a family from China claiming protection because of a fear of gangsters. The Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal) on 15 October 2015 affirmed a decision of a delegate of the Minister not to grant the applicants the protection visas. The applicants have raised issues relating to the reconstitution of the Tribunal during the course of the review and issues concerning the manner in which the Tribunal dealt with their Christian faith. For the reasons which follow, no jurisdictional error by the Tribunal has been established.
The following statement of background facts is derived from the submissions of the parties.
The first applicant is a citizen of China who arrived in Australia on a tourist visa on 31 October 2007. The second applicant, the first applicant’s son, arrived in Australia on a student visa on 12 November 2006. The third applicant, the second applicant’s wife, arrived on a student visa on 26 August 2011. The fourth applicant, the son of the second and third applicants, was born in Australia on 12 January 2014.
First visa application
The first applicant had previously applied for a protection visa on 14 December 2007. That application was refused on 7 March 2008, which decision was affirmed by the Tribunal on 3 July 2008. The applicant failed in an application for judicial review of the Tribunal’s decision[1]. The earlier visa application is relevant for two reasons: first, the effect of s.48A of the Migration Act 1958 (Cth) (Migration Act) is that the first applicant’s present application for a protection visa is confined to the complementary protection provisions that came into force on 24 March 2012[2]; secondly, the earlier application was advanced on substantially the same factual basis as the present application and the evaluation of inconsistencies between what matters were advanced, and the first applicant’s explanation for those inconsistences, was critical to the Tribunal's ultimate decision in this case.
[1] SZMQG v Minister for Immigration & Anor [2009] FMCA 699.
[2] SZGIZ v Minister for Immigration (2013) 212 FCR 235 at [38].
Second visa application
The first applicant made the visa application under consideration on 29 January 2014. In an accompanying statement, she claimed, by way of summary:
a)her brother was killed by gangsters who mistook him for someone else;
b)her family appealed to the authorities to have the gangsters apprehended and punished but the authorities had done nothing;
c)the gangsters threatened to kill the first applicant and her family if they took action against them;
d)both the gangsters and authorities came to the first applicant’s seafood market for the purposes of extortion and intimidation; and
e)if the first applicant were returned to China, she would continue to press for action against the gangsters and would be at risk of harm as a result.
The second, third and fourth applicants applied for protection visas on the same date as members of the family unit of the first applicant. They did not, at the time, articulate claims for protection on their own behalf.
An issue arose in relation to a leak of personal information by the Minister’s Department in February 2014 and the applicants were given the opportunity to comment on its significance. This does not have any bearing on the judicial review application but is mentioned for completeness.
On 25 February 2015, the delegate refused the first applicant's application. He also refused the application of the second, third and fourth applicants because he found that they were not part of the family unit of the first applicant in the sense required by the Migration Act.
Application to the Tribunal
On 28 February 2015, the applicants applied to the Tribunal for a review of the delegate’s decision.
The applicants appeared before the Tribunal on 24 April 2015, 8 May 2015 and 10 June 2015 to give evidence and present arguments with the assistance of a Mandarin interpreter[3].
[3] The first hearing was not substantive: the applicants appeared but said they had only received notice that morning and the hearing was adjourned.
Second hearing
The applicants have filed and served an affidavit of Ms Jaskiran Rekhraj affirmed on 25 May 2016 (Rekhraj Affidavit), annexing a transcript of the second hearing, which took place on 8 May 2015.
During the course of the second hearing, the Tribunal put to the first applicant that a number of details she had advanced in support of her first visa application had not been repeated in her current application, including: a claim that the first applicant’s father went to Beijing on multiple occasions to lodge complaints; that the first applicant had organised a protest demonstration; was subsequently arrested and had to pay a bribe to be released. The Tribunal explained that this might cause it to find against her and invited her to comment[4].
[4] Rekhraj Affidavit 19; Reasons [58]-[59].
Following a short adjournment, the second applicant said that the Tribunal had asked the first applicant for a lot of information and that she did not understand what was being put to her because of her poor literacy: “So even you have asked her that much questions and gave her that much information I don’t think she can understand all of that”[5]. The first applicant said, after another attempt by the Tribunal to put the information to her[6]:
I don’t know what you are talking about, you didn’t ask me during today, the hearing today, you didn’t ask me those questions. How can you expect me to reply to that then? And when I want to answer you didn’t allow me to answer.
[5] Rekhraj Affidavit 19; Reasons [60].
[6] Rekhraj Affidavit 22; see Reasons [60].
Following this exchange, the Tribunal proposed to write to the applicants following the hearing pursuant to s.424A of the Migration Act before proceeding (in the words of the member) “to discuss in a general way its concerns with regard to the evidence”[7].
[7] Reasons [60].
The applicants had never advanced their religious beliefs as a basis for their application. However, during the course of the second hearing, the Tribunal of its own accord asked the applicants a series of questions about their faith.
The Tribunal noted that the first applicant had sworn an oath on the Bible at the commencement of the hearing and asked whether her belief in God was relevant to her claims for protection[8]. This exchange ensued[9]:
[8] Rekhraj Affidavit 16, Reasons [52].
[9] Rekhraj Affidavit 16.
Member: … So do you have any other fear of significant harm if you return to China?
[Applicant]: Um, that’s it but I think (inaudible) the government will cause great harm to me, I will definitely be killed to me.
Member: Just before you said your belief in God was significant, but I still don’t understand – is that at all related at all to any claim you have? Or is that just a belief in God?
[Applicant]: I think both are very important.
Member: Why are both important?
[Applicant]: You know if it is very important because of my personal safety. If I go back to China I will definitely be killed.
Member: Do you want to say anything else about that?
[Applicant]: No, that’s it.
The first applicant wore a cross on a chain, said she had been baptised on 24 June 2014 and said she believed in God and Jesus, characterising it as her personal belief[10]. She was not asked, and she did not say, what particular denomination she observed or what she intended to do in relation to her faith in China. The Tribunal put to the first applicant that “there are tens of millions of Christians living in China” and “you would not be restricted from practising your beliefs”[11]. The first applicant responded[12]:
[Applicant]: I think that my personal beliefs has nothing to do with what I applied for.
Member: Well that’s alright. Christians, some Christians are persecuted in China so I need to put this to you. But if you’re saying it doesn’t affect you, then that’s fine.”
[10] Rekhraj Affidavit 28; Reasons [52], [62].
[11] Rekhraj Affidavit 28-29.
[12] Rekhraj Affidavit 29; see Reasons [64].
The second and third applicants had also taken an oath on the Bible. They were each asked some questions about their beliefs. The third applicant said she believed in Jesus “deep in her heart”, her relatives also believed in Jesus and she went to church occasionally. She said[13]:
[13] Rekhraj Affidavit 35; see Reasons [68].
I might be new to Christianity, but my in the future I might indulge, or know Jesus more. So I’m not sure if I go back to China and if my increased understanding about Christianity, I’m not sure whether I’ll be persecuted or not.
…
When you love someone there is always an extent, as for me I’m just like entry level, um, so I think I won’t be persecuted on the grounds of Christianity at the moment but I can’t guarantee in the future if there is any risk of that. (errors in original)
The second applicant also identified as a Christian but said[14]:
[14] Rekhraj Affidavit 36-37; see Reasons [68].
Firstly, this is a personal belief and I don’t know if I’ll be persecuted for that in the future, but my personal belief has nothing to do with the case today.
…
I want to stress again that this is my personal belief and I don’t know whether if I still practice Christianity in China what will happen. And I don’t think that you know that either.
The second and third applicants were not asked, and they did not say, what particular denomination they observed or what they intended to do in relation to their faith in China.
Finally, it is relevant to note that at the second hearing, the second applicant advanced for the first time a claim for protection on his own behalf relating to his being threatened in 2005 by persons who told him that his family should drop its claims against the gangsters who had killed his uncle[15].
[15] Reasons [53].
Third hearing
At the third hearing on 10 June 2015, the Tribunal referred to a document in its files provided by the first applicant that appeared to be a copy and translation of the verdict of the “Intermediate People’s Court, Fuzhou City, Fujian Province” dated 2002[16]. The judgment generally supported the applicants’ claims in relation to the circumstances of the death of the first applicant's brother, but suggested that the perpetrators had, in fact, been located, tried, and found guilty. Indeed, one was sentenced to death[17]. The first applicant responded that the perpetrators had been released by reason of their connection with the authorities and were living outside China. The second applicant said “that his mother has difficulty expressing her thoughts and had not been asked about these things before”[18]. Later, he “suggested that perhaps his mother had not understood some of the tribunal's comments as interpreted”[19].
[16] Court Book (CB) 242.
[17] Reasons [73].
[18] Reasons [73].
[19] Reasons [75].
Section 424A letter
On 12 June 2015, the Tribunal, as foreshadowed at the conclusion of the second hearing, wrote to the first applicant and separately to the second, third and fourth applicants pursuant to s.424A setting out information that it considered would be the reason or part of the reason for affirming the decisions under review[20]. The two letters were primarily concerned with inconsistencies between the first applicant’s application in 2007 and the current application.
[20] CB 291-305.
By a letter written in Chinese on 21 June 2015 and translated on 24 June 2015, the second applicant, on behalf of himself and the other applicants, gave a detailed response to the matters raised by the Tribunal's letters. In addition, he said the following[21]:
We are sorry that we didn't give a clear and detailed presentation when we answered questions during the interview of RRT. My mother didn't receive any education and she doesn't even know how to speak Chinese. She doesn't know the meaning of some words and she only answered questions based on her guess what those words mean (for example: the word “comment”). After the interview I asked her and she said she didn't know the meaning of those words. When you [said] some words which could be understood by her, I tried to explain their meanings to my mother but I was stopped by you. I only tried to explain the meaning of what you said to her. She is my mother and I know some words could be too difficult for her to understand. Please forgive me for that.
[21] CB 310.
The s.424A letters did not raise any matter relevant to the applicants’ religious faith.
Change of member
The first, second and third hearings had been presided over by Member Jeans (First Member). On 18 August 2015, the Tribunal wrote to the applicants informing them that the statutory appointment of Member Jeans had expired and that Member Homan (Second Member) had been appointed to complete the review. By letter dated 2 October 2015, the Tribunal advised that the Second Member had listened to the recordings of hearings and[22]:
does not propose to conduct a further hearing in your case unless you advise that any new issues have arisen since your last hearing on 10 June 2015 or you consider that you have not had an opportunity to fully discussed at a hearing any other issue arising in the review.
[22] CB 316 and 320.
On 6 October 2015, the applicants’ agent responded that they did not wish to make any further submission[23].
The Tribunal’s decision
[23] CB 322.
Killing of brother
Briefly, the Tribunal:
a)accepted that the first applicant's brother was killed after being attacked by a group of people while driving a car in July 1999[24];
b)did not accept the first applicant’s description of the events following the killing. This was mainly because:
i)the 2002 court verdict was inconsistent with the authorities having taken no action after the killing[25];
ii)the first applicant had failed to raise until prompted her allegation that the persons responsible had fled China, without satisfactory explanation[26];
iii)the first applicant had alleged matters in her first visa application that were not repeated until the applicants’ response to the s.424A letter[27];
c)did not accept the second applicant’s description of being threatened because he had not mentioned it at an earlier time[28];
d)was not satisfied that there was real risk of significant harm being suffered by any of the applicants arising from the first applicant's brother’s death[29].
[24] Reasons [90].
[25] Reasons [95].
[26] Reasons [96].
[27] Reasons [97].
[28] Reasons [99].
[29] Reasons [100].
Personal information
The Tribunal:
a)accepted that the first applicant was affected by a breach of privacy by the Department[30];
b)did not accept any details of the first applicant’s claim were published[31];
c)did not accept that there was any risk to the applicants as a result of the breach of privacy by the Department because:
i)there was no country information to indicate that Chinese authorities would take any adverse action if they knew the applicants had applied for a protection visa;
ii)the applicants had themselves approached the Chinese embassy to renew their passports[32]; and
d)accepted that the first applicant’s judicial review judgment had been published on the Internet but did not accept personal identifiers were available[33].
[30] Reasons [102].
[31] Reasons [102].
[32] Reasons [104].
[33] Reasons [103].
Credibility and inconsistency
In respect of the detailed claims made in the first applicant’s first visa application and repeated in the response to the s.424A letter, the Tribunal:
a)found that the failure to mention these claims at an earlier date on the present application cast significant doubt on the applicants’ credibility[34];
b)noted the second applicant’s explanation of his mother’s “confusion, lack of education, illiteracy, inability to speak Chinese, and the absence of specific questions relating to these claims”;
c)did not accept those explanations adequately accounted for the inconsistencies;
d)said, “Having listened to the recordings of the three Tribunal hearings, it is apparent that the applicant was able to give evidence in Mandarin and provide answers which were responsive to the questions asked of her”; and
e)concluded that the first applicant was given the opportunity to mention the relevant claims at an earlier date and her failure to do so was of “significant concern”[35].
[34] Reasons [97].
[35] Reasons [98].
Religion
In relation to the applicants’ religious beliefs, the Tribunal:
a)noted that none of the applicants had articulated a claim for protection in relation to their beliefs;
b)found that available country information indicated that Christians in China may, in certain circumstances, face a real chance or risk of serious or significant harm; and
c)found that “the evidence does not satisfy the Tribunal that these circumstances apply to the applicants in this case”[36].
[36] Reasons [101].
The Tribunal did not make a finding that the applicants’ religious beliefs were not genuine.
The judicial review application
These proceedings began with a judicial review application filed on 3 November 2015. There have been several iterations of the application since and the applicants finally relied upon a further amended application filed by leave on 5 August 2016. The grounds in that application are:
1. The Refugee Review Tribunal fell in to jurisdictional error in so far as it failed to accord the applicants procedural fairness and/or comply with section 425 of the Migration Act 1958.
Particulars
The Refugee Review Tribunal as composed by Member Homan made findings as to the first applicant’s demeanour and credibility ([98]) without affording the applicants a proper opportunity to participate in a further hearing, which would have required it to, inter alia:
(a) Invite the applicants to participate in a further hearing; and
(b) Inform the applicants that Member Homan would make adverse findings with respect to the demeanour and credibility of the applicants in the absence of an oral hearing and the material upon which such findings would be made.
2. The Refugee Review Tribunal fell into jurisdictional error in so far as it failed to comply with section 425 of the Migration Act 1958.
Particulars
The Refugee Review Tribunal failed to comply with section 425 in so far as it did not:
(a1) Correct the applicants’ misapprehension that their religious beliefs were not relevant to the determination of the application; or
(a) Adequately ensure that the applicants understood why their religious beliefs were relevant to the determination of their application;
(b) Otherwise adequately ensure during the course of any hearing that the applicants understand why their religious beliefs were relevant to the determination of their application; or
(c) Invite the applicants to provide comment on their religious beliefs after they understood their relevance. ([64]) and [68]).
3. The Refugee Review Tribunal fell into jurisdictional error in so far as it made findings that were not open on the evidence before it.
Particulars
The Refugee Review Tribunal concluded that the religious beliefs of the applicants did not put them at a real chance or risk of serious or significant harm on return to China ([101]).
It was not open to Tribunal to make that finding because the DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China (dated 3 March 2015) stated that in certain circumstances Christians in China faced a real chance or risk of serious or significant harm and there was not evidence before the Tribunal as to, inter alia:
(a) Whether the applicants were Catholics or Protestants;
(b) If Protestants, what particular denomination the applicants adhered to; or
(c) How the applicants intended to observe their faith in China.
4. The Refugee Review Tribunal fell into jurisdictional error in so far as it unreasonably concluded that country information relating to the persecution of Christians in China did not apply to the applicants.
Particulars
The Refugee Review Tribunal concluded that circumstances described in the DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China (dated 3 March 2015) relating to the persecution of Christians in China did not apply to the applicants and gave no intelligible reasons for that conclusion ([101]).
In addition to the book of relevant documents filed on 24 December 2016 and the supplementary book of relevant documents filed on 4 August 2016. I have before me as evidence an affidavit by Jaskiran Kaur Rekraj made on 25 May 2016, to which is annexed a transcript of the second Tribunal hearing on 8 May 2015.
Both the applicants and the Minister prepared several sets of pre-trial submissions which I have found of assistance. Counsel also provided helpful oral submissions at the trial of this matter on 9 August 2016.
Consideration
Ground 1 – was the Tribunal required to offer the applicants a further hearing following its reconstitution?
This ground concerns the effect of the change in the constitution of the Tribunal on 18 August 2015, after the third Tribunal hearing. The applicants contend that the Tribunal could not fairly make credibility findings against the first applicant based on what had transpired at the hearings without inviting the applicants to attend a further oral hearing. The applicants contend that the question of why the first applicant had not repeated all of the claims she had made in her first application at the earliest opportunity was central to whether her protection application would be accepted. The first applicant had been called upon by the Tribunal at the second hearing to deal with its concern and the issue was raised again at the third hearing. Because of the first applicant’s difficulties in responding orally, the Tribunal subsequently addressed its concerns in a s.424A letter, to which the applicants responded. The applicants refer to asserted confusion, lack of education, illiteracy, inability to speak Mandarin Chinese and non specific questions to assert an inadequacy of the hearing opportunity. They concede that there is no general rule that procedural fairness requires an oral hearing, or further oral hearing, but on the basis of the decision of the High Court in Minister for Immigration v WZARH[37] (WZARH), they contend that a further hearing opportunity was needed in order to clear up areas of confusion or misunderstanding.
[37] (2016) 90 ALJR 25.
I prefer the Minister’s submissions on this issue.
As noted above, the Tribunal was reconstituted after the original member had conducted three oral hearings. The replacement member did not conduct a further hearing. The applicants allege that by reason of the Tribunal’s failure to hold a further hearing, it failed to accord procedural fairness and/or comply with the requirements in s.425 of the Migration Act.
In WZARH the High Court held that the respondent was denied procedural fairness when an Independent Merits Reviewer appointed to conduct a review of his claim to be a refugee was replaced by a different Reviewer. The substitution occurred after the first Reviewer had conducted a hearing. The second Reviewer did not conduct a fresh hearing. The respondent was given no notice that the Reviewer assigned to his case had changed.
The High Court held that the respondent in WZARH had been denied procedural fairness in circumstances where the second Reviewer had made adverse credit findings against him. French CJ, Kiefel and Keane JJ held at [45]-[46]:
For reasons entirely beyond the respondent's control, information available from the interview conducted by the First Reviewer was only partly reflected in the recommendation made to the Minister; and because the respondent was not told of the alteration of the review process, he was denied an opportunity to be heard as to how the changed process might be completed so that he would not be disadvantaged by the change
…
It is difficult to identify any reasonable basis on which the Second Reviewer could fairly have refused the respondent an opportunity to be heard on the question of how the review process should proceed once that process was altered by the withdrawal of the First Reviewer. Elementary considerations of fairness required that the respondent be informed that the process explained to him by the First Reviewer would not be completed so that he would have the opportunity to be heard on the question of how the process should now proceed.
Similarly, Gageler and Gordon JJ held at [67]:
In light of the change in procedure that had occurred, fairness required that the Second Reviewer give to the respondent notice of the changed procedure, an opportunity to supplement the written submissions previously made on his behalf, and an opportunity to request supplementation of the record of interview by further oral evidence.
The decision in WZARH is distinguishable from this case. Unlike the position in WZARH, the applicants were informed of the alteration to the Tribunal’s constitution. The Tribunal initially informed the applicants on 18 August 2015 that the Tribunal would be reconstituted on account of the expiration of the First Member’s statutory appointment[38]. On 2 October 2016, the Tribunal again wrote to the applicants and said[39]:
Member Homan has listened to the recordings of the hearings you attended before Member Jeans and has considered your written submissions and documents, as well as the material on the Department of Immigrations files. Having done so, Member Homan does not propose to conduct a further hearing in your case unless you advise that any new issues have arisen since your last hearing on 10 June 2015 or you consider that you have not had an opportunity to fully discuss at a hearing any other issue in the review.
[38] CB 316.
[39] CB 316.
The letter went on to request any further information be provided by 9 October 2015. The applicants’ advisor responded that there would be “no further submission”[40]. There can be no denial of procedural fairness (or, more accurately, breach of the statutory obligation in s.425 of the Migration Act) in circumstances where the applicants were put on notice of the reconstitution of Tribunal, informed that the new member would listen to the previous hearings, asked if they wanted to have a further hearing in the event they felt they needed a further opportunity to put their case, but declined that opportunity.
[40] CB 322.
It is also important to distinguish the statutory context of the review in this case from the procedures before an Independent Merits Reviewer considered in WZARH. Section 422B operates to render s.425 of the Migration Act as an exhaustive statement of the natural justice hearing rule in relation to the opportunity to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. The opportunity is to be understood in light of the statutory context including s.19D(2) of the Administrative Appeals Tribunal Act 1975 (Cth) that specifically allows for the reconstitution of the Tribunal after the hearing.
Contrary to the applicants’ submissions, the Tribunal did not rely on any aspect of the applicants’ demeanour at the hearings. Rather, the Tribunal’s credit findings were based on objective inconsistencies in the applicants’ account. The reconstitution of the Tribunal did not, therefore, cause any unfairness to the applicants, especially in circumstances where they declined the opportunity of a further hearing.
Ground 2 – did the Tribunal breach s.425 of the Migration Act in relation to the applicants’ religion?
There are two aspects to this ground.
First, it is contended that the doctrine applied to s.425 by the High Court in SZBEL v Minister for Immigration[41] was contravened by the failure of the Second Member to sufficiently indicate to the applicants that the nature of their Christian beliefs would be determinative of an aspect of their claim.
[41] [2006] HCA 63; (2006) 228 CLR 152.
The applicants contend that this is a case where the Tribunal's statements or questions during the course of the second hearing failed to sufficiently indicate to the applicant that their religious beliefs were relevant to their application[42]. By reason of the specific circumstances affecting the applicants and the hearing (in particular, their professed lack of knowledge about the relevance of their beliefs), the applicants are said to have been left with the misapprehension that those views were not relevant and advanced no further information on the topic.
[42] see SZBEL at [47].
Secondly, and further or in the alternative, the broader ambit of s.425(1) is relied upon in relation to the same facts. The issue in SZBEL was the assumption by the applicant that a matter was not in issue because it had not been raised by the Tribunal. This is analogous in principle to a misapprehension that a matter is an issue. This is not a case where the applicants have merely failed to advance sufficient material in support of an integer of claim deliberately relied upon. The Second Member apparently proceeded on the basis that the DFAT Report rendered the applicants’ beliefs an issue on the review[43]. This was notwithstanding the exchange at the second hearing:
[First Applicant]: I think that my personal beliefs has nothing to do with what I applied for.
Member: Well that’s alright. Christians, some Christians are persecuted in China so I need to put this to you. But if you’re saying it doesn’t affect you, then that’s fine.
[43] Rekhraj Affidavit 29; see Reasons [64].
The applicants contend that they were misled by that exchange into thinking that the first applicant’s religious beliefs were not relevant. In my opinion, the applicants’ contention falls at the first hurdle because no claim based on religion was clearly articulated, and neither did it squarely arise on the material except in the most general terms. The Tribunal did deal with the issue of religion in short compass at [101] of its reasons where it said[44]:
In the course of the Tribunal hearings, the applicants indicated that they had recently been baptised and were Christians. None of the applicants articulated any claim for protection or expressed a fear of harm relating to their religion. Whilst there is country information available to the Tribunal that Christians in China may, in certain circumstances, face a real chance or risk of serious or significant harm, the evidence does not satisfy the Tribunal that these circumstances apply to the applicants in this case. Accordingly, the Tribunal is not satisfied that there is a real chance or risk of serious or significant harm being suffered by any of the applicants arising from their or their family members’ religion.
[44] CB 347-348.
In my opinion, the Tribunal in that paragraph fairly summarises what occurred at the hearing and the other material before it. In the absence of a clearly articulated claim, or one squarely arising on the material, there was nothing for the Tribunal to consider. While the applicants confirmed the fact of their Christian faith, they made no claim of a fear of persecution based upon that faith or a real risk of significant harm. It was left to the Tribunal to make what it wished of the fact of their faith. The Tribunal drew a conclusion, which was open to it, that the mere fact of the applicants being Christian would not expose them to a real risk of serious or significant harm in China should they return there. There was nothing procedurally unfair in the way that the Tribunal dealt with that issue.
Ground 3 – did the Tribunal fall into error by making findings not open to it on the issue of religion?
By this ground, the applicants again take issue with the Tribunal’s finding at [101]. They assert that the Tribunal’s findings were not open to it because of information available to the Tribunal in the relevant report of the Department of Foreign Affairs and Trade (DFAT report).
I accept the Minister’s submissions on this issue.
The applicants allege that the Tribunal made a finding that “the religious beliefs of the applicants did not put them at a real chance or real risk of serious or significant harm”. This assertion contains a subtle but important error. In fact, the Tribunal found “the Tribunal is not satisfied that there is a real chance or real risk of serious or significant harm being suffered by any of the applicants arising from their or their family members’ religion”[45]. The Tribunal, therefore, did not make a positive finding on this issue; it made a finding that it was not satisfied of the matters of which it was required to be satisfied.
[45] CB 348 at [101].
The crux of the applicants’ complaint is that the Tribunal did not elicit from the applicants further information about their religious beliefs and practices[46]. However, the Tribunal had no obligation to do this. It was a matter for an applicant to put forward material capable of satisfying the visa criteria[47]. Nor can the applicants complain that the Tribunal made findings on no, or insufficient, evidence. The “no evidence” ground of review has no application to a finding of lack of satisfaction[48].
[46] see submissions at [54].
[47] SZQWV v Minister for Immigration[2012] FCA 817 at [21] - [23] (and the cases cited therein).
[48] NAVK v Minister for Immigration [2005] FCAFC 124 at [32]-[34].
Ground 4 – was the Tribunal’s finding in relation to the applicants’ religion unreasonable?
By this ground, the applicants further challenge the Tribunal’s finding at [101] by reference to the DFAT report. I agree with the Minister’s submissions on this issue.
The applicants allege that the Tribunal’s finding in relation the unarticulated religious claim was unreasonable because the Tribunal’s reasons do not disclose an “evident and intelligible justification” for the conclusion reached.
An allegation of unreasonableness is inapt as a challenge to a finding that the Tribunal was not satisfied that the applicants were at risk of harm. Unreasonableness in this sense is a doctrine that conditions the exercise of discretionary powers vested by legislation. It is debatable whether it has any application to the Tribunal’s findings of fact[49].
[49] see Minister for Immigration v SZSNW [2014] FCAFC 145 at [81]-[82]; and Minister for Immigration v SZTJF [2015] FCA 1052 at [69].
The applicants must, therefore, establish that the Tribunal’s findings were illogical or irrational in the sense that its findings were not open on the evidence[50].
[50] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [129]-[131].
The Tribunal’s findings regarding the applicants’ religious beliefs at [101] must be construed in context. The Tribunal had earlier summarised the applicants’ evidence relating to their religion (such as it was) earlier in its reasons[51]. The applicants’ evidence as to their religious belief and practice was sparse[52]. None of them expressed a subjective fear of persecution for reason of their religion. Indeed, they expressed ignorance of any risks. In light of the very limited evidence put forward, it was open to the Tribunal (i.e. not illogical or irrational) to simply express its lack of satisfaction as to there being a risk of serious or significant harm.
[51] CB 341 at [61].
[52] see the summary in the applicants’ submissions at [53].
An additional issue
The Minister properly sought to deal with an issue raised by me at the interlocutory stage of this case concerning the Tribunal’s reasons at [8]-[10] where the Tribunal said[53]:
Section 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ) has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.
The Tribunal finds that the first named applicant made a protection visa application on 14 December 2007. That application was made and refused with reference to the Refugees Convention criteria, prior to the commencement of the complementary protection provisions on 24 March 2012. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have power to consider the Refugees Convention criterion in s.36(2)(a) in her case. The Tribunal notes, however, that for the reasons that follow, the outcome of this review would be the same were the Tribunal to consider her claims against the criteria in s.36(2)(a).
As this is the first protection visa application for the second, third and fourth named applicants, the Tribunal’s consideration of their applications is not affected by the [judgment] in SZGIZ.
[53] CB 332-333.
The Minister noted that the Full Court of the Federal Court was then reserved on an appeal where the correctness of the decision in SZGIZ v Minister for Immigration had been put in issue[54]. The outcome of that appeal potentially bore on the question of whether the Tribunal had jurisdiction to entertain the first applicant’s claim. The Minister did not invite the Court to await the Full Court’s decision before determining this case. Neither did the applicants. I agreed, for the reasons I advanced in CIS15 & Ors v Minister for Immigration[55]. In this case, the Tribunal found at [106][56]:
Having considered the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that any of the applicants have a well-founded fear of persecution in China. Nor is the Tribunal satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm.
[54] see Minister for Immigration v SZVCH [2016] FCAFC 127.
[55] [2016] FCCA 1504 at [29]-[35].
[56] CB 348.
It follows that, notwithstanding that the Tribunal correctly found that it was unable to consider the first applicant’s second protection visa application against the Refugees Criterion, it purported to make a finding pursuant to that criterion against all of the applicants. That would now appear to have been an error, but if so, it was not an error which adversely impacted upon any of the applicants.
Conclusion
I find that the applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 September 2016
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