DAJ19 v Minister for Immigration - [2020] FCCA 2142

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAJ19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2142

Catchwords:
MIGRATION – Application for review of decision of Administrative Appeals Tribunal (AAT) – whether the AAT made a fair decision – whether the AAT considered all aspects of the case – ground three lacks merit – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91X, 424AA, 424A, 476, pt.7, div.4

Federal Circuit Court Rules 2001 (Cth), r.12.02, pt.12

Cases cited:

Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265;

(2000) 101 FCR 20; (2000) 31 AAR 448

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 702

Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46;

(2009) 174 FCR 415

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26;

(2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1

Minister for Immigration & Ethnic Affairs v Wu Shan Liang

[1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568;

(1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22;

(1997) 191 CLR 559; (1997) 64 FCR 151; (1997) 71 ALJR 743;

(1997) 144 ALR 567; (1997) 48 ALD 481

Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510;

(1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

[1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265

Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105;

(1994) 34 ALD 347

Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs

and Ms S McIllhatton, Member Constituting the Refugee Review Tribunal

[1996] FCA 1263; (1996) 40 ALD 445; (1996) 135 ALR 421

Uma Chand v Minister for Immigration & Ethnic Affairs [1997] FCA 1198

Kopalapillai v Minister for Immigration & Multicultural Affairs

[1998] FCA 1126; (1998) 86 FCR 547

Minister for Immigration & Multicultural Affairs v Rajalingam

[1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30;

(2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408;

(2018) 75 AAR 434; (2018) 163 ALD 1

Minister for Immigration and Citizenship v Li [2013] HCA 18;

(2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225;

(2013) 139 ALD 181

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11;

(2016) 237 FCR 1; (2016) 329 ALR 491

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28;

(2016) 240 FCR 158

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2;

(2018) 258 FCR 175; (2018) 353 ALR 641; (2018) 74 AAR 121;

(2018) 353 ALD 641

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133;

(2018) 266 FCR 83; (2018) 361 ALR 227

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

Saeed v Minister for Immigration and Citizenship [2010] HCA 23;

(2010) 241 CLR 252; (2010) 84 ALJR 507; (2010) 267 ALR 204;

(2010) 115 ALD 493

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCAFC 184; (2003) 256 FCR 593; (2003) 75 ALR 630;

(2003) 75 ALD 630

Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389;

(2003) 73 ALD 321

Applicant:

DAJ19

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2013 of 2019

Judgment of:

Judge Nicholls

Hearing date:

21 July 2020

Date of Last Submission:

21 July 2020

Delivered at:

Sydney

Delivered on:

5 August 2020

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr Pipolo

Solicitors for the Respondents:

Mills Oakley Lawyers

ORDERS

The application made on 7 August 2019 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.
There be no publication of the applicant’s name.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2013 of 2019

DAJ19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 August 2019, seeking review of the decision of Administrative Appeals Tribunal (“the Tribunal”), which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicant a protection visa (“the visa”).
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (Court Book – “CB” – “RE1”).

Background

The applicant is a citizen of China (CB 9). He arrived in Australia on 7 April 2017 as the holder of a visitor visa (CB 15). His application for the visa was received by the Minister’s department (“the department”) on 20 December 2018 (CB 1–CB 28).
The applicant’s claims to fear harm were set out in his visa application. The applicant feared harm from the 14K gang, who had attacked him on two previous occasions (CB 25). The applicant claimed that the government wanted to imprison him for life (CB 24). His children were attacked by a “run away car”, and he was warned not to leave his previous employer. The applicant claimed that he would not be protected by the authorities in China (CB 25 and CB 26).

The Delegate

On 7 January 2019, the applicant was invited to, and attended an interview with the delegate on 15 January 2019 (CB 41–CB 42 and CB 61). During his interview with the delegate, the applicant claimed that he feared harm from “organised crime figures in China” and “government officials” (CB 63). The applicant claimed that in 2016 he began working for a debt collection company to earn extra money (CB 63). The applicant claimed that (CB 63):
“…he encouraged a client from whom he collected money to tell the media about the company’s criminal practices, which resulted in the arrest of 11 company employees from the branch where the applicant worked, including the manager, as well as the closing of the branch.”
The applicant claimed that when he attempted to leave the company “his family were threatened and his son was injured in a hit-and-run incident.” (CB 63).
The applicant also claimed that he would be unable to relocate to a “safe area” in China, because he would have to register with the local police, which would allow the police to locate him (CB 64).
The applicant further claimed that he suspected that the company was involved with the “14K group” (CB 64).
On 30 January 2019, the delegate refused to grant the applicant the visa (CB 56–CB 68). The delegate did not accept that the applicant “has a genuine subjective fear of being harmed in China by his former employer, or by the authorities, because he was a whistleblower against corrupt practices.” (CB 66).
The delegate found that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) of the Act (CB 66 and CB 67).

The Tribunal

The application for review was received by the Tribunal on 1 February 2019 (CB 81).
On 5 March 2019, the applicant was invited to, and attended a hearing on 19 March 2019 (CB 89–CB 90 and CB 98–CB 100).
On 20 March 2019, the Tribunal invited the applicant to provide “[a]ny other supporting information” by 3 April 2019 (CB 121–CB 122).
On 13 June 2019, the Tribunal invited the applicant to another hearing scheduled for 21 June 2019, which the applicant attended (CB 131–CB 134 and CB 136–CB 138).
On 5 July 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 140–CB 163).
At the hearing with the Tribunal the applicant told the Tribunal that while he travelled to Australia on a tourist visa, he and the group with whom he travelled, came to Australia “…to assess the whole market, and also visiting our existing customers”. ([22] at CB 145).
The applicant’s explanation was as follows ([23] at CB 145):
“23. The applicant indicated when the group arrived they went to visit a longstanding customer at their premises. The Manager went into the customer’s office and he was waiting in the carpark. There was a “little bit disagreement”. As a result of the disagreement the group members were arrested. On 13 April 2017 he was charged with one count of demanding property by threats with intent to extort or gain, pursuant to s.397(2) of the Criminal Code (W.A.). The group was held on remand but the charges were later dropped on 28 November 2018 and the group were released into immigration detention. The group left Australia, save for the applicant who remained in immigration detention.”
The Tribunal decided ([24] at CB 145):
“24. The Tribunal has not placed any weight on information regarding charges against the applicant in Australia because the matter was dismissed and the applicant did not raise any claims with respect to those charges.”
Under the heading “Protection claims”, the Tribunal set out the applicant’s claims for protection ([26]–[28] at CB 146):
“26. The applicant’s protection claims before the Department are summarised as follows:
· The applicant left China because he was at risk of being killed by a gang and because the government wanted to jail him for life.
· The applicant was attacked by the 14K gang twice. His son and daughter were also harmed by a “runaway car”, causing his son to require stitches.
· The applicant was warned not [to] leave the company he was with.
· The applicant went to the authorities. “The company and the cops were working together” and the police told the company that the applicant had sought assistance from them.
· Because the government colludes with the gang, the applicant could be traced throughout China and killed.
· The applicant’s family is living in hiding “far away”.
27. As noted above this summary was put to the applicant at the hearing. He confirmed it was true and correct. When asked whether he had any additional claims or updates to these claims he said he had further details to add but did not have any additional claims to those which were summarised as contained in the application.
28. The Tribunal notes that the applicant stated that the application form had been filled in for him by a friend in immigration detention and he could not be 100% certain the details were correct. However, he confirmed that the summary as read to him and translated at the hearing was accurate. As discussed below there were some inconsistencies in the applicant’s claims expressed in the application and at the hearing and the Tribunal has taken into account that the application form was based on a translation of an oral account he gave to a third party in the detention centre.”
Under the heading “Claims relating to gang involvement…”, the Tribunal set out the following of the applicant’s claims ([44] at CB 149–CB 150):
“…
· He is at risk of being killed by the company because he tried to stop working for them and as a result his son was hit by a car and his family was threatened. His family moved as a result of these threats.
· He encouraged a client to contact the media regarding the company’s activities, as a result 11 people at the company were charged in China and the office closed. He was also subsequently charged while in Australia for offences in China. He is at risk because the company knows he was responsible for the victim going to the media and the resulting charges and he will be killed.
· The applicant told the authorities about the attack on his son but the police are colluding with the company. They will tell the company he is the source of the information leading to charges against them and the police will frame him on return to China.”
The Tribunal considered the applicant’s involvement with his previous employer (“the company”), which provided small loans which the applicant claimed “…was run by gangsters who enjoyed police protection.” (See [45]–[52] at CB 150–CB 151).
The Tribunal accepted that it was plausible that the applicant worked for a company involved in providing small loans ([49] at CB 150). The Tribunal also accepted that the applicant “…was involved in activities for the company that included debt enforcement tactics of the types described by the applicant.” ([49] at CB 151). The Tribunal did not accept that the company was connected to the 14K gang ([51]–[52] at CB 151).
The Tribunal considered the applicant’s claim that his son was attacked. ([53]–[67] at CB 151–CB 154). The Tribunal gave the applicant the “benefit of the doubt” and accepted that the applicant’s son incurred injuries from having been hit by a taxi while he was riding his bicycle ([59] at CB 152). However, the Tribunal had “…serious concerns regarding the credibility” of the applicant’s claim that the accident was a deliberate act by the company to intimidate him [59] at CB 152).
The Tribunal noted that inconsistencies in the applicant’s evidence indicated that he “was not recalling events which had occurred.” ([61] at CB 153). The Tribunal found that the applicant “concocted the story that the event was connected to [the applicant’s previous employer] to strengthen his claims for protection.” ([62] at CB 153).
The Tribunal accepted that the applicant’s son was injured ([65] at CB 154). However, the Tribunal noted that the documentary evidence provided to support this claim did not indicate that the applicant’s son was hospitalised for a month, as claimed by the applicant.
The Tribunal was concerned about the applicant’s claim that he left his family in China, despite his claim that his son was seriously attacked ([66] at CB 154). Further at [67] the Tribunal stated that (CB 154):
“67. These inconsistencies cast doubt on the applicant’s claim that the family relocated due to concerns regarding their safety. It raises serious concerns regarding the applicant’s claim to fear harm on return to China as a result of threats to himself and his family by the company or from authorities.”
The Tribunal considered the applicant’s role as an informant and the claimed criminal charges in China ([68]–[89] at CB 154–CB 158). The Tribunal accepted that the applicant “was involved in a loan enforcement visit in March 2018.” ([85] at CB 157). The Tribunal found that it would be “highly implausible” for the applicant to be charged in relation to the loan enforcement visit if his version of the events was true, noting that the applicant claimed that he encouraged the “client/victim” to contact the media ([86] at CB 157). The Tribunal also found the applicant’s claim that he was charged because the company is colluding with the police to be “implausible” ([87] at CB 158).
The Tribunal found that the applicant would have known of the claimed criminal charges in China prior to his interview with the delegate ([88] at CB 158). The Tribunal inferred that ([88] at CB 158):
“…the applicant did not raise this material before the delegate because it may have suggested the applicant did not genuinely fear the harm claimed but was seeking to avoid prosecution for activities in China. The Tribunal draws the inference that the applicant only raised these matters after his earlier claims had been rejected by the delegate in an effort to strengthen his claims for protection.”
The Tribunal found that the applicant did not genuinely fear harm “…from ‘gangs’ in the form of his employer”. The Tribunal did not accept that the applicant would experience serious harm in China due to his being an employee of the company, being an “informant against” the company, or because of collusion between the company and the police ([89] at CB 158). The Tribunal also found that there was not a real chance that the applicant would experience persecution in China for these reasons ([89] at CB 158).
The Tribunal also considered the applicant’s claim that he would be “framed” by the police if he returns to China, as they are colluding with the company. ([90]–[94] at CB 158–CB 159). The Tribunal noted that it was “concerned” about the applicant’s shifting story in relation to whether or not “…he feared harm in relation to the criminal charges.” ([93] at CB 159).
The Tribunal noted that the applicant did not apply for protection until December 2018, despite arriving in Australia in April 2017 ([111] at CB 161). The Tribunal found that the “…applicant’s failure to apply for protection earlier is an indication that he was not fearful of serious harm when he arrived in Australia.” ([112] at CB 161).
The Tribunal found that the applicant’s claims to fear harm “lacked credibility” ([113]–[114] at CB 161–CB 162). The Tribunal found that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) of the Act ([122]–[123] at CB 162).

Application to the Court

The grounds of the application to the Court are in the following terms:
“BOTH THE HOMEAFFAIRS DEPARTMENT AND AAT DID NOT MAKE A FAIR DECISION ON MY REFUGEE/PROTECTION VISA APPLICATION AND THEN AAT REVIEW APPLICATION.
BOTH FAILED TO LOOK AT ALL THE ASPECTS OF MY CASE CORRECTLY.
IN CHINA THE POLITICAL ENVIRONMENT AND THE HUMAN RIGHT SITUATION ARE GETTING WORSE AND WORSE. I WOULD BE SEVERELY PERSECUTED AND JAILED FOR POLITICAL REASONS AND SOME OTHER REASONS.”

Before the Court

On 29 August 2019, a Registrar of this Court made orders giving the applicant the opportunity to file an amended application by 24 October 2019. The applicant did not file any amended application.
On 1 May 2020, orders were made in this Court giving the parties the opportunity to file written submissions 14 days and 7 days before the hearing, respectively. The Minister filed written submissions on 9 July 2020. The applicant did not file written submissions.
However, I note that on 22 October 2019, the Registry of this Court received correspondence from the applicant. I treated this correspondence as the applicant’s written submissions. (See further below).
At the hearing on 21 July 2020, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. The Minister was represented by a solicitor.
The applicant stated that he wanted to make submissions in the form of a statement he had brought with him which he wanted the Court to consider. He said he had drafted the statement in his own language and a friend had translated it into English.
I asked the interpreter to read the document to the Court, and for the benefit of the Minister’s solicitor who had not previously seen this document. The Minister had no objections to the Court treating this document as further submissions by the applicant (see further below).
The interpreter read the letter at the applicant’s direction. The letter made reference to the applicant by name. Plainly the applicant is a person who has applied for a protection visa and comes within the terms of s.91X(1)(a) of the Act. It is appropriate to note the provision of s.91X(2) of the Act. It is therefore also appropriate to make an order prohibiting the publication of the applicant’s name.

Consideration

The applicant’s submissions raised a number of matters.
One, the written submissions filed with the Court set out the applicant’s arguments as to why he sought protection in Australia and did not want to return to China. There are a number of elements to this.
First, the submissions refer to the reason he came to Australia (“to investigate the seafood market”), events leading to his being charged with extortion in Australia and his reasons, apart from his fears of returning to China, for wanting to stay in Australia (“a very good political system”).
The references to events in China appeared to outline some of the claims ultimately put to the Tribunal. As I sought to explain to the applicant the Court had no power to grant him a visa. The recounting of these events on their own did not reveal, or even indicate, jurisdictional error on the part of the Tribunal.

Second, as set out above, the applicant was charged with extortion in Australia. The purpose of the applicant’s reference to this both in writing and orally before the Court was not clear. He claimed to have been “wrongly jailed” in Australia.
If it was meant as some criticism of the Tribunal’s decision, then the Tribunal did refer to this matter (see under “Background” [15]–[16] at CB 144–CB 145). However, on the evidence before the Court there is no reason not to accept the Tribunal’s finding that it did not place any weight on this information in its consideration (see [24] at CB 145 and [18] above).
Third, the general reference to what the applicant said was the human rights situation in China, and how it would affect him, was not part of the applicant’s claims to fear harm as set out in his application for the visa, or before the Tribunal.
On the evidence, the Tribunal considered all of the applicant’s claims to fear harm. It cannot be said that the Tribunal failed to properly consider these claims. Nor, in relation to the criminal charges in Australia, can it be said that the applicant claimed before the Tribunal to fear harm in China because of this, as distinct from the fear of such charges arising out of events in China, which the Tribunal did consider.
Two, before the Court the applicant claimed that coming to Court was a “last resort” so as not to have to return to China. As set out above, I sought to explain to the applicant that the issue before the Court was not whether he should be given a visa to remain in Australia, but whether in making its decision the Tribunal acted according to the law.
If the applicant’s purpose in presenting the application to the Court now was for any other reason other than seeking to reveal jurisdictional error on the part of the Tribunal, then such a purpose is improper and does not assist the applicant.
Three, the applicant submitted that he had sought to obtain legal advice to assist him in prosecuting his application. He said he had been refused legal aid. There is no reason not to accept the applicant’s submission in this regard. Nor did the Minister dispute it before the Court.
However, there is no right to legal representation in matters of this type (Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20, SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 and Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50).
The applicant also asked the Court to arrange a legal representative for him. In the circumstances I could not see that this was an appropriate case for consideration of a referral pursuant to Part 12 of the Federal Circuit Court Rules 2001 (Cth). (See in particular Rule 12.02).
Four, the remainder of the applicant’s submissions were directed to the matter of why he believed he should be allowed to remain in Australia, not to whether the Tribunal’s decision revealed an error in the exercise of its jurisdiction. At best, he sought impermissible merits review.
Given that the applicant was not legally represented, and he did make genuine attempts to obtain such assistance, I did consider whether there was any other matter arising from the evidence before the Court that may reveal jurisdictional error in the Tribunal’s decision.
One, as set out above, the Tribunal stated in its decision record that it put “potentially adverse information” to the applicant pursuant to s.424AA of the Act. The Tribunal identified this information as “…information contained in the translated documents and in the copy of his passport”. ([33] at CB 147).
The “untranslated” copies of documents were identified as follows ([31] at CB 147):
“…
° An untranslated copy of a document the applicant said was a police report of a car accident involving his son in January 2017 (the police report).
° Untranslated medical reports which the applicant claims relate to treatment of his son for injuries received in the car accident in January 2017.
° An untranslated copy of a document the applicant said was a summons for him to appear before court in China on charges relating to blackmail, trespassing and gangster involvement from November 2018 (the court summons)…”
These documents, and some of the untranslated versions of these documents, and copies of relevant pages of the applicant’s passport are reproduced in the Court Book at CB 103–CB 111, CB 114–CB 119 and CB 128–CB 130).
Section 424AA of the Act is a mechanism by which the Tribunal may elect to discharge the obligation in s.424A(1) of the Act orally at a hearing, instead of in writing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [89]).
The use of s.424AA of the Act therefore depends on whether the obligation in s.424A of the Act is enlivened. That section requires the Tribunal to give to an applicant for comment, or response, information which it considers would be the reason or a part of the reason for affirming the delegate’s decision, and as that is explained by the High Court, for example in SZBYRv Minister for Immigration and Citizenship [2007] HCA 26 at [17]–[18].
The subject of the obligation is information with that characteristic. The section does not talk of documents, although of course information may be contained in a document.
In the current case, the information in the untranslated documents and the applicant’s passport, was all information given by the applicant to the Tribunal for the purposes of the review, and therefore was excepted from the obligation in s.424A(1) of the Act by operation of s.424A(3)(b) of the Act.
Plainly the information, and the documents in which it was contained, were in the Mandarin language, and it appears were not amenable to be read by the Tribunal member for that reason. While the Tribunal obtained different documents, being the translated English version of the information, there is nothing in the evidence before the Court to indicate that the information, itself, was different in its meaning, or relevance to the Tribunal’s consideration of the review. When the information was put to the applicant at the hearing he made no objection as to the accuracy of the translation.
There is an argument therefore that s.424A(1) of the Act was not enlivened and the use of s.424AA of the Act was not required. In any event, there is no error in the exercise of jurisdiction for the Tribunal to have used this mechanism in an abundance of caution, and in the circumstances, in the interests generally of procedural fairness.
Two, as set out above, the Tribunal had significant concerns about the credibility of the applicant’s claims, evidence and conduct (for example, his delay in applying for the visa after arriving in Australia).
The Tribunal set out at some length in its decision record, the direction it said it obtained from various authorities as to how to approach the assessment of the “applicant’s credibility” ([36] and see [35]–[41] at CB 147–CB 149, with footnotes).
The majority of the authorities relied on by the Tribunal stated in its decision record, were over 19 years old at the time of the Tribunal’s decision. However, there is no doubt that the principles relied on by the Tribunal, were with respect, still relevant.
For example, at [36] the Tribunal stated that it was mindful, amongst other matters, that it was “…important that the Tribunal…adopts a reasonable approach in making its findings on credibility.⁴” The footnote refers to a number of cases from the 1990’s. [See as set out in footnote:
“Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 [Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and Ms S McIllhatton, Member Constituting the Refugee Review Tribunal [1996] FCA 1263; (1996) 40 ALD 445], Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.”]
There can be no doubt that legal reasonableness is a necessary and essential element in making a lawful decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80] [89], Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53], Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58]).
The principles relevant specifically to the consideration of an applicant’s credibility were more recently summarised by the Full Federal Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (per Kenny, Kerr and Perry JJ) (at [30]):
“30.The relevant principles can be summarised as follows.
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”
As is also clear from its decision record, the Tribunal relied, in part on inconsistencies in the applicant’s various accounts of past events and claimed harm. In this regard the Full Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (per Kenny, Griffiths and Mortimer JJ) stated at [41] (and see [22]-[28]):
“41. For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e) Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).

(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.”
In the current case the Tribunal summarised its concerns as follows ([42] –[43] at CB 149):
“42. The Tribunal has significant concerns about the credibility of the applicant’s claims. There were marked inconsistencies in aspects of his claims including in relation to events which occurred in China including the alleged attack in which his son was injured. On critical aspects of his claims he struggled to provide meaningful detail, context or corroborative evidence. Further aspects of his claims including in relation to his role as an informant and with regard to charges brought by Chinese authorities were implausible and the applicant was unable to provide a satisfactory explanation for how the events described gave rise to the claimed risk of harm on return to China. These concerns are detailed further in the assessment below.
43. In the Tribunal’s view, the applicant’s conduct in Australia contributes further to doubts regarding his credibility and claims for protection. These include his delay of more than 18 months in seeking protection in Australia and his application for a bridging visa to leave Australia which indicate that he does not fear persecution or significant harm in China for the reasons claimed.”
These concerns were subsequently explained with reference to specific parts of the applicant’s claims and evidence, and led to a number of adverse findings as to the credibility and plausibility of key aspects of the applicant’s account of past events, and his fears if he were to return to China (see in particular [52], [57], [59], [62], [64], [65]–[67], [74]– [77], [85] and [93] of the Tribunal’s decision record).
On the evidence before the Court, and in the circumstances presented to the Tribunal, I cannot see that the Tribunal’s consideration of the credibility of the applicant’s claims was other than consistent with the various principles and explanations provided by the authorities set out above.
Nor, for the sake of completeness, can it be said that the Tribunal failed to bring an open mind to the assessment of credibility, or for that matter, the review generally.
While the Tribunal came to adverse conclusions about the applicant’s credibility in his account of why he feared harm, the Tribunal did find some aspects of his evidence plausible (see for example [49], [59] and [85]). The Tribunal’s findings were all reasonably open to it on what was before it and for which it gave intelligible reasons probative of the material before it.
The terms of the grounds of the application are set out at [33] above. Before considering each of the grounds I note the following. Grounds one and two seek to impugn the delegate’s, and the Tribunal’s, decisions.
This Court has no power, in the circumstances of this case, to review the delegate’s decision. The delegate’s decision was not only reviewable by the Tribunal, but was in fact reviewed (see s.476(2) and (4) of the Act).
Ground one asserts that the Tribunal did not make a fair decision. The Tribunal is not obliged to make the right decision, or what the applicant considers to be a “fair” decision. The Tribunal is required to make a lawful decision. In the absence of any particulars whatsoever, and in the absence of any explanation from the applicant when given the opportunity to give one to the Court, the ground cannot succeed (WZAVWv Minister for Immigration and Border Protection [2016] FCA 760 at [35], MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25]).

The Tribunal is required to be procedurally fair in the conduct of the review. In the current case, there is nothing in the evidence before the Court to indicate that the Tribunal failed to comply, or breached, any of the provisions in Division 4 of Part 7 of the Act, which contains the exhaustive statement of the natural justice hearing rule in relation to the matters that division deals with (Saeed v Minister for Immigration and Citizenship [2010] HCA 23).
In all ground one is not made out.
Ground two asserts that the Tribunal failed to look at all the aspects of the applicant’s case “correctly”. Again there are no particulars to the ground and the applicant did not explain this ground before the Court.
On the evidence before the Court, the Tribunal did consider all of the applicant’s claims to fear harm, and all integers of each claim, that were expressly made or clearly arose on the material before it (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 and Applicant WAEE v Minister for Immigration &Multicultural & Indigenous Affairs [2003] FCAFC 184). Nor has the Tribunal failed to respond to “…a substantial, clearly articulated argument” (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24])
In the circumstances what remains, particularly when regard is had to the word “correctly”, is perhaps simply a disagreement with the conclusion reached by the Tribunal, and the findings that informed it. In short, the ground seeks impermissible merits review and is not made out.
Ground three asserts that the political environment and human rights situation in China is “getting worse” and that the applicant would be persecuted and jailed for political reasons or “some other reasons”.
This ground lacks merit. The applicant made no claim before the Tribunal that he feared harm on the basis of his political opinion in China or because the human rights situation in China generally was getting worse. The Tribunal was not required to consider a claim not made in the requisite sense
If this was meant as a plea to the Court to intervene in granting the visa, then it was made clear to the applicant, that the Court has no such power to do so.
What is meant by the phrase “some other reasons” remained unexplained before the Court. If the applicant feared persecution for “some other reasons” he had ample opportunity to raise these with the delegate or relevantly, the Tribunal. In all, this ground is not made out.

Conclusion

None of the applicant’s grounds reveal jurisdictional error. I cannot otherwise see that the Tribunal’s decision is affected by jurisdictional error. It is appropriate to dismiss the application to the Court. I will make that order.

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

Associate:

Date: 5 August 2020