CVI15 v Minister for Immigration

[2018] FCCA 3562

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVI15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3562

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal – protection visa application by applicant who had been included in his mother’s earlier protection visa application as a member of her family unit – where applicant’s son born after the protection visa application was lodged was included in the application – whether the Tribunal failed to consider any integer of the claims – whether legal unreasonableness – s.438 certificate.

Legislation:

Migration Act 1958 (Cth), ss.48A, 438

Migration Regulations 1994 (Cth), reg.2.08

Cases cited:
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109
AVO15 v Minister for Immigration and Border Protection [2017] FCA 566
BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
SZVCH v Minister for Immigration and Border Protection [2015] FCCA 2950; (2015) 303 FLR 403
SZVCP v Minister for Immigration and Border Protection (No.3) [2016] FCCA 3333
SZVHX v Minister for Immigration and Border Protection [2016] FCCA 3376; (2016) 316 FLR 112

First Applicant: CVI15

Second Applicant: CVN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3534 of 2015

Judgment of: Judge Barnes

Hearing date: 1 November 2017

Date of Last Submission: 16 November 2017

Delivered at: Sydney

Delivered on: 7 December 2018

REPRESENTATION

Applicants: First Applicant In Person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3534 of 2015

CVI15

First Applicant

CVN15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 1 December 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas. 

2. The First Applicant (referred to for convenience as the Applicant) was born in China in 1992 and arrived in Australia in December 2007 as the holder of a student visa.  He was granted a further student visa in June 2008 which was cancelled in October 2009. 

3. On 30 September 2009 the Applicant was included in his mother’s protection visa application as a member of her family unit.  That application was refused.  The decision was affirmed by the then Refugee Review Tribunal.

4. On 19 September 2013 the Applicant lodged the application for a protection visa that is the subject of the Tribunal decision in issue in these proceedings.  The Department treated the application as valid as a result of the Federal Court decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235.

5. In a statement in support of this protection visa application the Applicant claimed that his family had suffered persecution in China due to their religion as Christians who refused to participate in state controlled churches.  He told the Tribunal that his family belonged to the Church of Almighty God. 

6. The Applicant claimed that his parents had been arrested and detained in 2006 during house church gatherings and that he was sent to Australia in 2007 because his parents were afraid that he would be arrested while attending church activities.  His mother accompanied him to Australia.  The Applicant claimed that not long after they arrived in Australia he and his mother started to attend a Chinese church in Strathfield.  He claimed that sometimes his mother sent Christian materials to his father in China.  He claimed that he had not given up his belief.

7. The Applicant also claimed that in 2009 his father was arrested while holding a house church gathering, tortured and forced to admit to the local police that materials had been sent to him from Australia by his wife and child and that he was sentenced to six months re-education.  The Applicant claimed that the police had searched their house and had warned relatives that if he and his mother returned to China they must report to the police or face severe consequences and that his father was still harassed and threatened and had been investigated several times.  The Applicant claimed to fear he would be arrested and sent to a labour camp if he returned to China.

8. In his written statement the Applicant also claimed that in December 2012 Chinese authorities had banned the Church of Almighty God, arrested and persecuted many followers and that they had demolished churches.  He claimed that there was no religious freedom in China.

9. The Applicant attended an interview with a delegate of the First Respondent on 7 April 2014. 

10. On 9 June 2014 the Second Applicant was born in Australia to the Applicant and his partner and was subsequently added to the Applicant’s protection visa application as a member of his family unit.

11. On 11 September 2014 the delegate refused to grant the Applicants protection visas.  In reasons for decision the delegate recorded that during the interview the Applicant had made a new claim that as a result of a data breach at Villawood Detention Centre the Chinese authorities would lock him up because his name had been leaked.  However the delegate noted that the Applicant (who had been detained in 2013) had been released from Villawood Detention Centre on 26 September 2013 and that departmental advice regarding the data breach indicated that it only affected applicants who were in detention on 31 January 2014.  The delegate did not accept that the Applicant’s details had been released into the public domain.  The delegate otherwise found that the Applicant had manufactured his claims of persecution in their entirety.

12. The Applicants sought review by the Tribunal.  The Applicant attended a Tribunal hearing on 20 November 2015.  The only evidence before the court as to what occurred in the Tribunal hearing is the material in the courtbook and the Tribunal reasons for decision.

The Tribunal Decision

1. On 1 December 2015 the Tribunal affirmed the decision not to grant the Applicants protection visas. 

2. In its reasons for decision the Tribunal observed that in SZGIZ the Full Court of the Federal Court had held that the statutory bar in s.48A of the Migration Act 1958 (Cth) (the Act) did not prevent a non-citizen who had made a valid application on the basis of the Refugees Convention criterion from making a further application on the basis of the complementary protection criterion.

3. The Tribunal also noted that the Second Applicant’s claim was made on the basis of being a member of the same family unit as his father.

4. The Tribunal summarised the Applicant’s claims in the statement attached to his protection visa application and his evidence at the Tribunal hearing.  It found that the Applicant’s responses to many of the questions at the hearing, including about the unique belief of adherents of the Church of Almighty God, his involvement with the Church and his claim that his family belonged to the Church of Almighty God were vague and lacking in detail and that at times he had been unable to provide any explanation at all in relation to issues and questions raised with him, particularly in respect of his and his family’s religious background.  The Tribunal had serious concerns about the Applicant’s credibility.

5. For reasons outlined in detail in the decision the Tribunal found that the Applicant had not told the truth in relation to crucial aspects of his claims.  First, the Tribunal found that the Applicant had been unable to demonstrate any knowledge of the Church of Almighty God to which he claimed his family belonged and that he seemed never to have heard of the unique beliefs of adherents of that church when that information was put to him at the hearing.  The Tribunal was of the view that the Applicant had made no attempt to persuade it that he had any such knowledge.  Despite his claim that he came to Christianity under his father’s influence, on the Applicant’s evidence the Tribunal was not satisfied that his father had educated him or introduced him in any way to the beliefs of the Church of Almighty God or to Christianity. 

6. The Tribunal also had regard to the fact that the Applicant had been unable to state when the Church of Almighty God was banned by the Chinese government, had provided very little evidence about his parents’ arrest in 2006 and had been unable to recall his own whereabouts at the time.  The Tribunal did not accept that the Applicant was too young to recall such details.  The Tribunal found that the Applicant had not provided a persuasive explanation for why his parents would have been released from detention as easily as he claimed, despite the fact that the Church of Almighty God was a banned religious organisation which was considered an evil cult in China and having regard to country information about the treatment of persons found to be involved in such cult activities.

7. The Tribunal also took into account the fact that the Applicant had been unable to tell it what kind of religious materials his mother had sent to his father.  The Tribunal found it difficult to believe that the Applicant would be totally unaware of such details, given that this action was allegedly the reason his father was arrested and tortured in 2009 and was part of the basis of the Applicant’s claims for protection.  The Tribunal found that the Applicant could provide no persuasive explanation as to why his mother would have sent his father generalist Christian materials obtained in Australia when the Church of Almighty God was founded in China and followed a completely different set of sacred writings. 

8. Further, the Tribunal took into account the fact that the Applicant had been unable to explain why his father had been uncontactable since 2012 or 2013, despite the fact that the Applicant had been in contact with his aunt and sister who resided at the family home in China and could reasonably be expected to have some knowledge, particularly as the Applicant claimed the police continued to visit the family home looking for him and his mother.  The Tribunal also considered it significant that the Applicant did not include this detail in his written statement.

9. On the evidence before it the Tribunal did not accept that the Applicant or his parents were genuine adherents of the Church of Almighty God or that the Applicant’s parents were detained and forced to pay money to secure their release from detention in 2006 as he claimed.  Nor did it accept that the Applicant’s mother had sent Christian materials to his father in China which led to his father being arrested in 2009.  As it did not accept these claims the Tribunal also did not accept that the Applicant’s father was arrested in 2009 or that he had been re-arrested, killed or otherwise harmed and/or forced into hiding since 2012 in order to avoid harm from the Chinese government. 

10. As the Tribunal did not accept that any significant harm had come to the Applicant or his parents in China for reason of being adherents of the Church of Almighty God, it did not accept that the Chinese authorities had an interest in finding the Applicant or his mother if they returned to China.  The Tribunal did not accept that the Applicant would attend Church of Almighty God gatherings or demonstrate any adherence to that religion if he returned to China.  It did not accept there was a real risk he would be arrested or significantly harmed in any way for this reason.

11. In addition, the Tribunal did not accept that the Applicant was a Christian of any other denomination or that he intended to practise Christianity upon his return to China.  It had regard to the fact that he had put forward no persuasive evidence to support the claim that he was a practising Christian in Australia and had stated that he rarely attended church and that the last time had been at least two years earlier.  The Tribunal acknowledged the Applicant’s statement that going to church did not necessarily demonstrate that one was a Christian, but also had regard to the fact that he had demonstrated an extremely limited understanding of Christianity at the hearing.  It found that other than being able to recite various of the ten commandments (which the Tribunal considered were easily learnt) the Applicant had displayed no convincing knowledge of the basic tenets of Christianity.  It referred to the fact that when asked what Christianity was all about, the Applicant at first could not explain anything and when pushed could only state that he believed in God and eternal life, but could not articulate what that actually meant to him.  The Tribunal also found that the Applicant had not demonstrated any knowledge of the significance of baptism to Christians. 

12. The Tribunal acknowledged that the Applicant’s wife was reportedly a Christian.  It observed that the Applicant had not claimed he would be harmed due to his wife’s Christianity.  Although the Tribunal had not spoken with the Applicant’s wife at the Tribunal hearing, it noted that the Applicant stated that his wife was not currently attending church.  It was not persuaded by the explanation that this was due to their son.  The Tribunal considered that this cast some doubt on whether the Applicant’s wife was a practising Christian, but in any event noted that cited country information did not generally support the view that Christians were significantly harmed in Fujian Province simply for their attendance at registered or unregistered churches.  While the Tribunal was satisfied the Applicant would not attend a Christian church on return to China, in the event that his wife did so, it did not accept that there was a real risk that the Applicant would suffer any significant harm for this reason.

13. Finally, the Tribunal did not accept that the Applicant was at risk of being harmed on return to China due to being identified by the Chinese government as a person who had sought asylum in Australia.  It had regard to the fact that the data breach referred to by the Applicant during his interview with the delegate only affected persons who were detained in Villawood Immigration Detention Centre in January 2014 and that the Applicant had been released from detention on 26 September 2013.

14. The Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to China there was a real risk that he would suffer significant harm.  It found he did not meet the complementary protection criterion. 

15. While the Tribunal understood that there was “generally” no obligation on it to consider the Refugees Convention criterion, it expressed the view (referring to SZVCH v Minister for Immigration and Border Protection [2015] FCCA 2950; (2015) 303 FLR 403) that as the delegate had elected to do so, it should also consider whether the Applicant met the Refugees Convention criterion.

16. The Tribunal was satisfied that the Applicant had been given a fair opportunity to present all his claims.  It had regard to its serious concerns about the Applicant’s credibility and its finding that he had not told the truth in relation to crucial aspects of his claims.  The Tribunal did not accept the Applicant’s protection claims and concluded that he did not meet the Refugees Convention criterion.

17. The Tribunal found that the Second Applicant was not owed protection obligations as a member of the Applicant’s family unit.

These Proceedings

1. The Applicants sought review by application filed in this court on 23 December 2015.  There are three grounds of review.  The Applicant did not file any written submissions either before the hearing or when given the opportunity to do so after the hearing in response to issues that arose at the hearing and were addressed by the First Respondent in affidavit evidence and post-hearing written submissions. 

2. Before considering the grounds in the application, it is convenient to consider the issues about the Tribunal decision and procedures that were raised by the Applicant at the hearing.

3. First, the Applicant claimed that the Tribunal decision was not fair.  Insofar as this was a general disagreement with the Tribunal’s conclusion it amounts to no more than seeking impermissible merits review.  As discussed further below, legal unreasonableness in the Tribunal’s fact finding, conclusion or procedures has not been established.    

4. The Applicant also claimed that he had been asked to provide more information about his father being persecuted and arrested, but that as he could not find his father he was unable to provide such documents.  If this is a reference to the discussion in the interview with the delegate about the lack of documentary evidence to support the Applicant’s claims, that is not indicative of jurisdictional error on the part of the Tribunal. 

5. While the matter was before the Tribunal the Applicant was given the opportunity to provide any further information or documents in support of his claims.  In its reasons for decision the Tribunal referred to a discussion at the hearing of the fact that the Applicant had not seemed to be able to provide much information about his parents’ religious activities.  However the Tribunal did not base its findings on the absence of further documentary information in relation to the Applicant’s father.  In any event it was for the Applicant to advance whatever evidence or argument he wished to advance in support of his claims (see Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ). Further, the Tribunal is not required to engage in an uncritical acceptance of an applicant’s claims (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 per Beaumont J).

6. The Applicant’s contentions in this respect do not establish jurisdictional error on the part of the Tribunal.

Whether the Tribunal failed to consider an integer of the Applicant’s claims

1. The first ground in the application is as follows:

   1.  The Administrative Appeals Tribunal (AAT) failed to make a recommendation according to law by failing to address an integer of the applicant’s claim. 

   Particulars

   a.  The applicant claimed he had a well-founded fear of persecution from the Chinese authorities because he attended Church of Almighty God, which is persecuted by the Chinese authorities.

   b.  The AAT did not present (sic) any knowledge of Church of Almighty God.

   c.  The AAT did not present (sic) the ability to decide whether or not the applicant could be a believer of Church of Almighty God.

   d.  Accordingly, the AAT failed to address an integer of the applicant’s claim as outline (sic) in paragraph a. above. 

1. When given the opportunity to address this ground, the Applicant claimed that because he had gone to school in China, he had not gone to church very often, so his knowledge of the church was limited.  The Tribunal considered this explanation for the Applicant’s limited attendance at church activities.  The Tribunal also considered the Applicant’s claim to have attended the Church of Almighty God.  However in circumstances where the Applicant was unable to demonstrate any knowledge of the Church of Almighty God (including when it was banned in China) and had otherwise provided vague, inadequate explanations in response to questions at the hearing, the Tribunal rejected the Applicant’s claim that he and his parents were genuine adherents of the Church of Almighty God.  The Tribunal was clearly of the view that the Applicant would have had some knowledge of the unique beliefs of adherents of the Church to which he claimed he belonged.   

2. Hence, insofar as this ground is an allegation that the Tribunal failed to consider a claim to fear harm by reason of his attendance at and his parents’ involvement in the Church of Almighty God, it is not made out.  This claim was repeatedly referred to in the Tribunal’s decision record.  The Tribunal considered whether the Applicant faced harm in China on this basis.  It also considered whether the Applicant faced harm as a Christian of any other denomination. 

3. It has not been established that the Tribunal failed to have regard to a substantial, clearly articulated argument relying on established facts in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, or that it failed to consider a claim arising clearly or squarely on the material before it in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1.

4. The First Respondent acknowledged that this ground may be seen as taking issue with the Tribunal’s assessment of the Applicant’s religious knowledge and to involve an allegation that the Tribunal erred by improperly acting as an arbiter of religious doctrine.  Such contention is not established on the material before the court.  It is well-established that when an applicant’s claims are contingent on his or her adherence to a particular religion it is appropriate for the Tribunal to test those claims and to make findings as to whether or not the applicant is a genuine adherent of the religion in question (MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 at [47]).

5. In this case the Applicant claimed that his family belonged to the Church of Almighty God.  The Tribunal found that he was unable to demonstrate any knowledge of that church and seemed never to have heard of the unique beliefs of the adherents of that church when such information was put to him at the hearing.  Nor had he made any attempt to persuade the Tribunal he had any such knowledge. 

6. There is nothing in the material before the court to establish that the Tribunal set an arbitrary level of knowledge of or commitment to the Church of Almighty God or, indeed, to Christianity in general, which the Applicant was required to meet (cf Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [38]-[39] and SZVHX v Minister for Immigration and Border Protection [2016] FCCA 3376; (2016) 316 FLR 112). Rather, it appears from the Tribunal reasons for decision that at the hearing the Tribunal explored the Applicant’s knowledge and understanding of the church and also his religious beliefs and practices in China and in Australia, before forming the view that he had no knowledge or understanding of the church to which he claimed he had been an adherent in China, no convincing knowledge of the basic tenets of Christianity and that there was no persuasive evidence that he was a practising Christian in Australia. The Tribunal considered the Applicant’s knowledge and understanding and evidence about his activities in both China and Australia before reaching the conclusions that it did. Ground 1 is not made out.

Whether unreasonableness in findings in relation to data breach claim

1. Ground 2 is that:

   The AAT failed to make a recommendation according to law by making a finding that was:

   a. illogical or irrational; and/or

   b.  so unreasonable no reasonable independent protection assessor could have made it; and/or

   c.  not open on the evidence available to the AAT. 

   Particulars

   a. The AAT found there was “no evidence” to support the claim that the applicant would be persecuted for having sought refugee protection and for having been in a detention center (sic). 

   b.  In consideration of country information the AAT referred to the DIBP, Vietnam: VNMC1141021190659563-Risk of Returnees to Vietnam, 6 November 2014. 

   c.  The AAT did not make a finding as to whether or not the applicant would face equal or less risk if the destination country is China, other than Vietnam.

2. The Applicant made no submissions in relation to ground 2. 

3. It is apparent that this ground is intended to take issue with the basis on which the Tribunal rejected the Applicant’s claim to fear harm as a result of the data breach in relation to persons in detention in January 2014.  In support of its finding that the data breach affected only persons who were in detention in January 2014 the Tribunal referred in a footnote to a departmental report on Vietnam (sic) dated 6 November 2014 headed “Risk of Returnees to Vietnam”.  This is the document referred to in particular (b) to this ground. 

4. Initially the First Respondent suggested that the Tribunal’s reference to a document about Vietnam may be a mistaken, but irrelevant, reference that was not such as to establish unreasonableness or illogicality or irrationality such as to constitute jurisdictional error.  At that time the material was not in evidence.  

5. I gave the First Respondent the opportunity to provide the court with a copy of the DIBP report on Vietnam and made orders for post-hearing written submissions addressing ground 2 in light of the content of that document.  The First Respondent filed and relied on an affidavit of Tristan James Dimmock affirmed on 16 November 2017 annexing a copy of the DIBP report and provided post-hearing written submissions which addressed ground 2 having regard to the manner in which it was pleaded and the content of the DIBP report on Vietnam.  The Applicant did not respond.

6. In light of the content of the Vietnam report, the Minister withdrew the initial submission that the Tribunal’s reference to this report was irrelevant.  Rather, it was submitted, and I accept, that the report was probative of the Tribunal’s conclusion that the Applicant was not affected by the data breach. 

7. As indicated, the Vietnam report was referred to by the Tribunal in the context of addressing the Applicant’s claim to fear harm in China by reason of the data breach.  While the report was a report on Vietnam, not on China, critically it confirmed that the data breach only affected persons in immigration detention in January 2014.  In particular, in considering whether there was any evidence that Vietnamese authorities were aware of names accessible when the data breach occurred the DIBP report stated (at page 6) in general terms that:

   Immigration Detention and Community Statistics Summary, a Microsoft Word document dated 31 January 2014, which was published on the Australian Department of Immigration and Border Protection’s (DIBPs) website, allowed access to source data containing personal information of around 10,000 asylum seekers in detention or community detention in Australia in January 2014.  The document was published on DIBP’s website on 11 February 2014.

   (footnotes omitted)

8. In addition, in footnotes the Vietnam report referred to a KPMG report dated 20 May 2014 and to a report from The Guardian of 20 February 2014 in relation to the data breach.

9. It appears that it was this generally expressed information about the timing and extent of the data breach (which was not confined to persons of Vietnamese ethnicity or citizenship) that was relied upon by the Tribunal.  It was probative in relation to the Tribunal’s finding that the Applicant’s details would not have been available as a consequence of the data breach as he had been released from detention in September 2013 and provided a logical basis for the Tribunal’s findings in relation to the data breach claim.  In these circumstances it was not necessary for the Tribunal to make a finding as to whether the Applicant would face a risk in China that differed from any risk faced by a person returning to Vietnam who was affected by the data breach.

10. It was not illogical, irrational or unreasonable for the Tribunal to refer to the Vietnam report in this context.  It is clear that the Tribunal did not make its finding on the basis of whether Vietnamese asylum seekers affected by the data breach would be at risk.  Rather, its finding was that the Applicant was not in detention in January 2014 and that the data breach only affected persons in detention at that time.

11. The fact that the information about the data breach was contained in a report about Vietnam is not indicative of jurisdictional error on any basis asserted.  The general information in relation to the data breach relied on by the Tribunal was clearly addressed to the whole class of persons affected by the data breach (and by logical inference the whole class of persons not affected by the data breach), not just persons of Vietnamese nationality.  It was on this basis that the Tribunal determined that the Applicant would not be at risk of significant harm for reason of the data breach.  It was not illogical or irrational or legally unreasonable for the Tribunal to make findings on this basis in light of the general information in the November 2014 DIBP report on Vietnam about the extent to which detainees were affected by the data breach.

12. Insofar as ground 2 suggests that the Tribunal erred by finding that there was “no evidence” to support the claim that the Applicant would be persecuted in China for having sought protection in Australia and for having been in detention, as the First Respondent submitted, such assertion misconstrues the Tribunal decision.  No such finding was made.  The Tribunal did not accept that the Applicant was at risk of being harmed due to being identified by the Chinese government as a result of the data breach as a person who had sought asylum in Australia.  This conclusion was based on the findings the data breach referred to by the Applicant only affected “persons” detained at Villawood Detention Centre in January 2014 and that the Applicant was released from detention on 26 September 2013.  The evidence before the court does not suggest that the Applicant claimed to fear harm in China generally because he sought asylum and had previously been detained, apart from the claim based on the data breach.  It is apparent from the material before the court, including the decisions of the delegate and the Tribunal, that the Applicant’s claim in this respect was limited to a claim that his name had been leaked into the public domain because of the data breach and that the Chinese authorities would become aware of this and would lock him up if he were to return to China.  It has not been established that there was a more general substantial clearly articulated argument relying upon established facts to the effect that the Applicant feared harm as an asylum seeker and/or for having been in detention which the Tribunal was obliged to consider (either in the Dranichnikov sense or as a claim arising clearly or squarely on the material or evidence before the Tribunal in the sense considered in NABE (No 2)).  The Tribunal considered the claim made by the Applicant on the basis of the general evidence in the 2014 DIBP report on Vietnam.  It did not err in the manner contended for in this ground.

13. I also note that the Tribunal recorded that when the Applicant confirmed that he still claimed to fear returning to China on the basis of being identified by the Chinese authorities as a result of the data breach, it put to the Applicant the fact that he was released from detention in September 2013 and the information that the breach only affected persons in detention in January 2014.  In this way it made him aware of the dispositive issue in relation to this aspect of his claims.  

14. It has not been established that the Tribunal fell into jurisdictional error in the manner contended for in ground 2.

Whether illogicality, irrationality, legal unreasonableness or other error

1. Ground 3 in the application is as follows:

   The AAT failed to make a recommendation according to law by making a finding in relation to a jurisdictional fact that was:

   a.  illogical or irrational; and/or

   b.  so unreasonable no reasonable independent protection assessor could have made it; and/or

   c.  not open on the evidence available to the AAT. 

   Particulars

   a.  The AAT found the applicant had no genuine interest in Christianity.

   b.  The AAT found the applicant’s father was not an adherent of the Church of Almighty God.

   c. The AAT found the applicant’s mother did not ever send his father any religious materials.

   d.  Each of the findings in a., b. and c. above was a critical step in finding that the applicant would not be persecuted for reason of his religion.

   e.  Each of the findings in a., b. and c. above was based substantially on the AAT’s construction of the applicant’s description of services at the Church of Almighty God.

   f.   In the premises, the AAT’s construction of the applicant’s description of services at the Church of Almighty God was a critical step in the AAT’s review.

   g.  In the premises, the content of the applicant’s description of the services at the the (sic) Church of Almighty God is a jurisdictional fact.

   h.  The AAT misconstrued the applicant’s description of services at the Church of Almighty God, and this misconstruction was an error of fact in relation to a jurisdictional fact.

   i.   In the premises, the AAT’s error of fact infected the AAT’s duty to examine and deal with all the claims for refugee protection made by the applicant.

2. The Applicant made no submissions in relation to this ground when given the opportunity to do so. 

3. The initial difficulty with this ground is that the premises in the particulars do not reflect the basis for the Tribunal’s findings.  The Tribunal found that it did not accept that the Applicant or his parents were “genuine adherents” of the Church of Almighty God or that the Applicant was a Christian of any other denomination (or that his mother sent any Christian materials to his father in China which led to his father being arrested in 2009).  However the Tribunal did not substantially base its findings on its construction of the Applicant’s “description of services at the Church of Almighty God” in the manner contended for in this ground.

4. The Applicant’s written claims did not describe services at the Church of Almighty God (beyond a reference to the fact of “church gatherings”).  Neither the delegate nor the Tribunal referred to any oral evidence from the Applicant describing church services, beyond his claims about people attending church gatherings.  The Tribunal recorded that the Applicant said he rarely attended underground church activities with his parents as he was studying and that “[w]hen pushed for further information about the Church of Almighty God the applicant was only able to say that if you believe in God then you can have everything.  He said he was unable to say more as he has never been to official churches.  The applicant confirmed he was not baptised and that the church gatherings he attended normally involved about ten people…”

5. Otherwise, the discussion about the Church of Almighty God recorded by the Tribunal related to its distinct unique beliefs and the fact that the church had been banned as a cult in China and the Applicant’s lack of knowledge in those respects. 

6. In its reasons the Tribunal had regard to matters such as the Applicant’s lack of knowledge of the beliefs of the Church of Almighty God and the fact it was banned in China (as well as the other matters outlined above including the fact that the Applicant’s responses to many questions were vague and lacking in detail).  The Tribunal did not refer to any description by the Applicant of services at the Church of Almighty God in making its findings.  As there is no evidence that the Applicant described services of the Church of Almighty God and the Tribunal did not make findings on this basis, the contentions in this ground fail at a factual level.   

7. Further, the Applicant’s evidence to the Tribunal about matters such as his religious beliefs, background and experience and his involvement with the Church of Almighty God in China is not such as to constitute a “jurisdictional fact” insofar as that term is generally understood to identify a criterion which, if satisfied, enlivens the power of a decision-maker to exercise a discretion (see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135).

8. The contention that the Tribunal “misconstrued” the Applicant’s “description of services” at the Church of Almighty God is not made out on the face of the Tribunal reasons for decision.  It has not been established that there was any misconstruction of evidence, let alone an error of fact as contended for by the Applicant, whether in relation to a jurisdictional fact or otherwise. 

9. Furthermore, a person’s religious faith is a matter that the Tribunal may validly consider and assess when such faith forms the basis for claims to fear harm.  In the present case there is no suggestion that the Tribunal improperly acted as an arbiter of religious doctrine (see SZLSP at [37]-[38]).

10. Neither the ground as pleaded or the material before the court establishes illogicality or irrationality such as to amount to jurisdictional error (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 per Crennan and Bell JJ at [130]-[131]). It has not been established that no rational or logical decision maker could have arrived at this decision on the same evidence (SZMDS at [130]) given the evidence as to the Applicant’s lack of knowledge and vagueness about the unique religion to which he claimed he and his parents belonged, his inability to explain why his mother would have sent his father generalist Christian materials when the Church of Almighty God followed completely different sacred writings and other credibility concerns outlined above.

11. The Tribunal considered the Applicant’s claims.  While credibility findings are not immune from review (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [37]-[38]), no jurisdictional error has been established. In particular, the findings the Tribunal made were reasonably open to it on the material before it for the reasons which it gave and, as indicated, this is not a case in which no reasonable decision-maker could have made the findings made by the Tribunal (see SZMDS at [130], [131] and [135] and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [47]). Legal unreasonableness as a result of an identifiable error in fact finding is not made out (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [27]-[28] and [72]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [6]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [60]).

12. Ground 3 is not made out. 

SZVCH Issue

1. In submissions the Minister addressed two other issues of potential relevance.  The first of these related to the fact that in addition to considering whether the Applicant (who had been included in his mother’s protection visa application only as a member of her family unit) met the complementary protection criterion (consistent with the approach taken in SZGIZ), the Tribunal also considered whether he met the Refugees Convention criterion.  It did so on the basis that at the time of its decision there was authority of this court (SZVCH) to the effect that in circumstances where a visa application could only validly be made on the basis of the complementary protection criterion, there was generally no obligation on the Tribunal to consider the Refugees Convention criterion, but that if the delegate had elected to consider that criterion the Tribunal should also do so.  As the delegate had considered the Refugees Convention criterion in relation to the Applicant, the Tribunal in this case also did so.  

1. However, as the First Respondent pointed out, on appeal from SZVCH in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366 the Full Court of the Federal Court found that the Tribunal was obliged to decide the correct statutory question (at [39]) and that where, as was the case in SZVCH, a visa applicant had already had his or her Refugees Convention claims considered in the context of an earlier protection visa application, then by reason of s.48A of the Act the correct question was whether the Tribunal was satisfied that such applicant met the complementary protection criterion (or the family unit criterion where relevant).

2. On this basis the Tribunal was incorrect in its general understanding of its obligations with respect to matters affected by SZGIZ.  However this error did not give rise to a jurisdictional error.  As the First Respondent conceded, as the law stood at the relevant time, because the First Applicant had previously applied for and been considered for the grant of a protection visa only on the basis of being a member of his mother’s family unit, in his second protection visa application he was entitled to be considered for the grant of a protection visa on the basis of whether he satisfied the Refugees Convention criterion as well as on the basis of the complementary protection criterion. 

3. In other words, while the Tribunal considered the Refugees Convention criterion for what was subsequently shown to be the wrong reason, it in fact proceeded correctly in considering whether the First Applicant met the Refugees Convention criterion in circumstances where he had previously only been assessed as a member of his mother’s family unit.

4. The Second Applicant applied only as a member of the First Applicant’s family unit and the Tribunal correctly considered his application on that basis. 

5. As the Tribunal considered each Applicant against the applicable criteria and ultimately conducted the review it was required to conduct, no jurisdictional error is established in this respect.

Section 438 certificate

1. The Department issued a certificate under s.438 of the Act on 25 September 2014. Copies of the certificate and of the documents the subject of the certificate were annexed to an affidavit of Subasha Shradha Lakraji Badlu Prasad affirmed on 25 October 2017, having been provided to the court at the time of the hearing in a sealed envelope consistent with the approach suggested in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305.

2. The certificate certified that paragraph 438(1)(a) of the Act applied to information in specified folios in the departmental file on the basis that disclosure of the information would be contrary to the public interest because such folios contained “information relating to an internal working document and business affairs”.  

3. The Minister acknowledged that I would be likely to find that the certificate was invalid.  It is clearly invalid.  As Beach J found in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at [37] a reference to an internal working document and business affairs is inadequate to enliven a public interest immunity claim within s.438(1)(a) of the Act.

4. However, as the First Respondent submitted, the invalidity of the certificate did not affect the jurisdiction of the Tribunal and there was no lack of procedural fairness, effectively because there was no practical injustice suffered by the Applicant as there was nothing in the fact of the certificate or in the documents the subject of the certificate that could have affected the outcome of the review.  

5. The documents the subject of the certificate included a completed printed form headed “Protection Visa Application VALIDITY CHECK” which recorded that the visa application was valid; a blank printed form relating to the grant of an “Associated Bridging Visa”; and an internal email of 19 September 2013 from a departmental officer (described as Detention Coordinator Onshore Protection NSW) to the NSW Detention BVE Team advising that the Applicant had lodged a valid protection visa application having regard to SZGIZ and requesting that a decision be made on his associated Bridging visa E application.  It is clear that none of these documents was of any relevance to the Tribunal decision and that the Tribunal did not rely on them.  It cannot be said that the Applicant suffered any practical injustice in not being made aware of the fact of the certificate relating to these documents or of the existence or contents of these documents.  Such documents could not have affected the outcome of the review.  In contrast to the approach taken, in different circumstances, in MZAFZ and Singh, in this case the Tribunal has not been shown to have denied the Applicant procedural fairness by failing to disclose the existence of the certificate in relation to these documents or the documents themselves (see AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [90]-[91]; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [36]-[57] and SZVCP v Minister for Immigration and Border Protection (No.3) [2016] FCCA 3333 at [158]).

6. The other documents the subject of s.438 certificate consisted of two internal departmental emails. The first is an email of 8 September 2014 from a departmental officer (who was the delegate who refused the visa application) to another departmental officer seeking clarification as to whether the Applicant’s child could be included in his father’s protection visa application by operation of law. The email advised that the Applicant had requested that the delegate not include his newborn son in his protection visa application and his representative (who had provided details of the child’s birth) had advised that the Applicant did not want to provide Forms B and D on the child’s behalf.

7. The second document is the response of 9 September 2014 from an officer in the Onshore Protection Programme Support Section. It referred to the fact that under reg.2.08(1) of the Migration Regulations 1994 (Cth) (the Regulations) a child born after a parent’s application for a visa (but before it was decided), was taken at birth to have applied for a visa of the same class and the child’s application was taken to be combined with the parent’s application. The email also referred to departmental policy in PAM3 as to the visa application procedures in such a case, including the fact that no application form was required for the child and there was no need for a separate visa application, although it was policy that a parent should complete standard visa application forms for the child. The email advised that, despite this policy, if there was a deemed application by a child under reg.2.08 and the decision-maker became aware of this, a decision on that application must be made in respect of the child. On this basis, the officer advised that even though the Applicant did not want to include his son in his application and refused to lodge an application for him, by virtue of reg.2.08(1) the child was taken at birth to have lodged a protection visa application which was combined with that of his father and hence under s.47 of the Act, a decision must be made on that application.

8. The officer also observed that while the child’s mother had made a separate protection visa application, that application had been determined by the delegate and by the Refugee Review Tribunal before the birth of the child and therefore he was not taken to have been included in his mother’s application. 

9. As the First Respondent pointed out, the Second Applicant was born on 9 June 2014, which was after his father made his protection visa application.  The Applicant’s migration agent advised the Department of the name and date of birth of the Applicant’s son on 25 August 2014.  On 8 September 2014 the agent advised the Department that the Applicant did not want his son added to the application and did not want to provide a Form B and D.  However, by email of 10 September 2014 the delegate who had requested the advice referred to above advised the migration agent that by operation of law (reg.2.08) the child would be added to the Applicant’s protection visa application.

10. Consistent with this advice, the delegate’s decision record of 11 September 2014 referred to the fact that the infant child was added to the application by operation of law under cl.2.08(1) of the Regulations.  He was assessed as a member of the Applicant’s family unit.

11. The s.438 certificate was dated 25 September 2014. The Applicants sought review by the Tribunal of the delegate’s decision on 8 October 2014. The infant child was included as a review applicant.

12. Having regard to the material in the courtbook I accept that, as the First Respondent submitted, in correspondence prior to the delegate’s decision the Applicant was clearly put on notice (including through his migration agent) that his child would be included in the protection visa application because of the operation of reg.2.08 of the Regulations. This was the approach taken in the delegate’s decision. The Applicant did not raise any issue with the Tribunal as to whether the child was validly included in the protection visa application. It cannot be said that there is anything in the intra-departmental request and response that the Applicant did not know at the time of the Tribunal review that could have affected the review before the Tribunal.

13. In the particular circumstances of this case, I accept that the Applicants did not suffer any practical injustice from not having the certificate or the existence or content of these documents disclosed.  The documents could not have affected the outcome of the review.

14. There is no reference in the Tribunal reasons to any of these documents. The Tribunal did refer to the fact that the Applicant was granted a Bridging visa E and released from detention on 26 September 2013 and to the fact that he had a son who was included in the protection visa as a member of his family unit. As the Tribunal also recorded, the son made no claims in his own right and the delegate had refused to grant the Applicant and his son visas on 27 February 2015. However this information was referred to in the delegate’s decision the Applicant provided to the Tribunal. No issue was raised before the Tribunal, and nor is any apparent, in relation to the inclusion of the child in the application by operation of law pursuant to reg.2.08 of the Regulations. In this sense the matter is distinguishable from the circumstances considered in MZAFZ and in Singh.  There was no lack of procedural fairness in the sense of practical injustice such as to give rise to a jurisdictional error. 

15. Further, even if, technically, the invalidity of, or failure to disclose, the existence of the certificate and/or the documents covered by the certificate was such as to constitute jurisdictional error (see MZAFZ at [65]), as the Tribunal did not act on the material, there was no practical injustice and knowledge of the certificate and the related documents could not have made any difference to the outcome of the Tribunal’s decision, I would decline to grant relief in the exercise of my discretion. (See BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36 at [32]-[33]).

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  7 December 2018