DKN16 v Minister for Immigration; DKN16 as Litigation Guardian for DKP16 v Minister for Immigration
[2017] FCCA 2463
•3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DKN16 & ANOR v MINISTER FOR IMMIGRATION & ANOR DKN16 AS LITIGATION GUARDIAN FOR DKP16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2463 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decisions – refusal of protection visas – applicants claiming a fear of harm in China due to religion – adult applicants not believed – whether the Tribunal erred by failing to consider the conduct of the adult applicants in Australia in its complementary protection assessment – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 91R Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: Minister for Immigration v SZJGV [2009] HCA 40; (2009) 238 CLR 642 SZTDM v Minister for Immigration & Anor (No 2) [2013] FCCA 2060 |
| First Applicant: | DKN16 |
| Second Applicant: | DKO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3138 of 2016 |
| Applicant: | DKN16 AS LITIGATION GUARDIAN FOR DKP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3139 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Moutasallem, pro bono publico |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS – SYG3138 of 2016
A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 24 October 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to re-determine the application before it according to law.
ORDERS – SYG3139 of 2016
The application filed on 14 November 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3138 of 2016
DKN16
First Applicant
DKO16
Second Applicant
And
MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
SYG 3139 of 2016
| DKN16 AS LITIGATION GUARDIAN FOR DKP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
In these proceedings, the applicants seek judicial review of two decisions made by the Administrative Appeals Tribunal (Tribunal) on 24 October 2016. In the first Tribunal decision, the first applicant, DKN16, is the wife of the second applicant, DKO16. In the second Tribunal decision, DKP16 is the child of the two applicants in the first Tribunal decision. In both cases, the Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
On 22 June 2017, I ordered that the two proceedings be heard concurrently.
The following statement of background facts is derived from the submissions of the Minister in the two proceedings.
DKN16 and DKO16
The first applicant (applicant) is a citizen of China who arrived in Australia on 7 August 2007 on a student visa, which expired in March 2010. On 12 June 2014 she made her application for a protection visa. On 14 November 2014 the applicant joined the second applicant to the protection visa application as a member of her family unit. They married on 25 January 2015 and on 5 May 2015 their daughter was born. The daughter made a separate application for a protection visa.
The applicant claimed to fear harm on the basis of her Christian religion if returned to China. She claimed that her parents had helped to establish a house church in Fujian Province, that the church was declared a cult and that her parents experienced harm and mistreatment from Chinese authorities. The applicant claimed that she was expelled from school due to her religion. When the applicant came to Australia, she had difficulty finding a church that she could attend, but eventually joined the Christian Assembly of NSW in October/November 2013 and was baptised in early 2014. She claimed to attend Sunday services each week and a bible study group every one to three weeks. The applicant claimed that she sent religious materials to her parents in China and that the materials were discovered following a raid by the authorities of the parents’ home just before Easter in 2014. The discovery of the materials led to her mother being detained for half a month, and then being placed under house arrest, while her father went into hiding.
On 2 July 2015 the delegate refused to grant the applicants visas.[1] The delegate did not accept that the applicant was born into a Christian family,[2] and did not accept the genuineness of her engagement and commitment to the church in Australia.[3] While the delegate accepted that the applicant might be a Christian, it found on the basis of country information that authorities in Fujian Province were tolerant of unregistered Christian churches and that reports of persecution were rare.[4]
[1] Court Book (CB) 96-110
[2] CB 99
[3] CB 100
[4] CB 107
The applicants applied to the Tribunal for review.
Decision of the Tribunal
The Tribunal affirmed the decision under review.[5]
[5] CB 145-156
The Tribunal set out the applicant’s claims made to the Minister’s Department[6]. At [46] the Tribunal observed that the second applicant for the first time made his own claims for protection relating to his practice of Christianity.
[6] CB 145-147 at [8]-[21]
The Tribunal addressed the findings made under s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act) separately in its reasons. In relation to the refugee claims, the Tribunal accepted that the applicants had some knowledge of Christian teaching.[7] It gave weight to the fact that the applicants were both issued passports and allowed to leave China unimpeded.[8] The Tribunal found the applicant’s evidence concerning her family to be confused.[9] In particular, the Tribunal found incongruous the applicant’s evidence that her father was an itinerant worker, but that the family appeared to have sufficient funds to pay for boarding school fees for the applicant’s four younger siblings and pay social compensation fees for having breached China’s “one child policy”.
[7] CB 152 at [58]
[8] CB 152 at [59]
[9] CB 152 at [60]
The Tribunal found the following claims of the applicant to be implausible:
a)that foreign preachers packed up and fled, leaving their assembled congregation behind to be arrested by police;[10]
b)that the applicant’s family would have kept in the family home the hundreds of illicit CDs she sent them, considering prior intervention of the authorities and surveillance of her father;[11]
c)that the applicant would have sent illicit materials to her parents in the first place, considering their monitored circumstances.[12] The Tribunal did not believe that the applicant had sent such materials to her parents;
d)that the applicant’s mother would have been detained for only two weeks following the discovery of the CDs, and that her father avoided being implicated in the matter;[13]
e)that her father’s exile from the family home was as she claimed;[14] and
f)that the applicant’s family had been displaced or forced to separate or that they had been sent into hiding.[15]
[10] CB 152 at [61]
[11] CB 152 at [62]
[12] CB 152 at [63]
[13] CB 153 at [64]
[14] CB 153 at [66]
[15] CB 153 at [68]
The Tribunal also found incongruous the applicant’s description of herself as being still at the learning stage of being a Christian when she claimed to have been an active Christian since birth.[16] The Tribunal found inconsistent and unsatisfactory the applicant’s evidence explaining her delay in committing to a church in Australia, and her delay in seeking protection following her arrival in Australia.[17]
[16] CB 153 at [69]
[17] CB 153 at [70]-[71]
The Tribunal concluded upon a “cumulative consideration” of the factors mentioned that it did not accept the applicant was a Christian before coming to Australia. Critically, the Tribunal did not accept that the applicant “commencing affiliation with a church in 2013 or 2014 had anything to do with establishing or re-establishing continuity with practices to which, as claimed, she was genuinely committed back in China”.[18]
[18] CB 153 at [72]
The Tribunal accepted that the applicant joined a Christian church in Auburn in 2013 and was baptised in that church in January 2014.[19] However, the Tribunal found that she had little to do with the congregation, and did not accept her claim that she had converted people, or that she was preparing to become a preacher or a priest.
[19] CB 153 at [73]
The Tribunal found that the applicant engaged in affiliating with a Christian church solely for the purpose of strengthening her claim to refugee status. Accordingly it disregarded “her conduct in affiliating with the church and undergoing baptism for the purposes of assessing her claim to refugee status”.[20]
[20] CB 154 at [75]
The Tribunal considered the second applicant’s refugee claims, and was not satisfied that he was a genuine Christian. It disregarded his conduct in attending the Auburn church in Australia.[21]
[21] CB 154 at [76]
The Tribunal went on, despite having disregarded the applicants’ conduct in Australia, as identified, to consider whether the applicants’ affiliation with Christianity in Australia placed them in danger if they returned to China. It found that it would not. The Tribunal found that the applicants would not affiliate with unauthorised churches in China if they returned because they “are not genuinely interested in doing so”. [22]
[22] CB 154 at [77]
The Tribunal considered whether the fact that the applicants’ daughter required hearing aids would give rise to Refugees Convention based fear of harm, but rejected the claim.[23]
[23] CB 154 at [79]
The Tribunal was not satisfied that the applicants were owed protection obligations under s.36(2)(a).
The Tribunal then turned to the addressing the applicants’ complementary protection claims. The Tribunal’s findings are relevantly set out at [84].[24] It found the applicants’ claims to complementary protection are “essentially the same claims they have made in their application for protection as a refugee”. The Tribunal found, “[t]hose claims, which have failed due to a lack of credibility, can no more succeed as complementary protection claims”.
[24] CB 154
The Tribunal addressed additionally the question of hardship arising from their daughter’s medical condition, and the claim that the second applicant’s mother would never accept the daughter. The Tribunal was not satisfied that the claim for harm met the definition of “significant harm” under the Migration Act.[25]
[25] CB 155 at [85]
The Tribunal found the applicants were not owed protection obligations under s.36(2)(aa).
DKP16
The child applicant was born in Australia on 5 May 2015. Her parents made an application for a protection visa on her behalf on 9 July 2015.[26] Background facts relating to her parents’ protection visa application are outlined at [4]-[7] above.
[26] CB 1-35
The child applicant’s claims to fear harm were predicated largely on her parents’ claims. Additionally the child applicant’s parents advanced a claim to the delegate that she will not be able to receive treatment for a hearing ailment from which she suffers if she returned to China.[27] It was also claimed on behalf of the child applicant that she would suffer discrimination in China due to needing to wear a hearing aid and that this would affect her schooling.
[27] CB 70
On 26 April 2016 the delegate refused to grant the child applicant a visa.[28]
[28] CB 68-81
The child applicant applied to the Tribunal for review.
Decision of the Tribunal
The Tribunal affirmed the decision under review.[29]
[29] CB 111-119
The Tribunal identified that the issue in the review was whether the child applicant was entitled either to refugee or complementary protection.[30] It observed that another issue in the case was “the reliability of the evidence provided on the child applicant’s behalf by her parents”.[31] The hearing of the child applicant’s review application was conducted concurrently with the hearing of the parents’ review application.[32] The Tribunal noted that the child applicant’s parents “made it clear from the start of the hearing that the fate of [the child applicant’s] protection visa application depended on their evidence about themselves”.[33]
[30] CB 113 at [12]
[31] CB 113 at [13]
[32] CB 112 at [3]
[33] CB 112 at [3]
The Tribunal observed that the child applicant raised claims based upon religion, and membership of a particular social group.[34] The child applicant’s religion claims were based on her parents’ claimed adherence to the Christian religion, it being acknowledged by the parents that the child applicant herself was not a baptised Christian.[35] The Tribunal reiterated its concerns as to the plausibility of the child applicant’s mother’s claims to have been a Christian in China.[36]
[34] CB 113 at [15]
[35] CB 114 at [18]
[36] CB 114 at [19]-[20]
Importantly, the Tribunal found expressly that whilst it had disregarded the child applicant’s parents’ conduct in Australia under s.91R(3) of the Migration Act for the purposes of their review, it did not disregard the parents’ conduct for the purposes of the child applicant’s review.[37] The Tribunal expressly considered the child applicant’s parents’ conduct in Australia for the purposes of determining whether the child applicant had protection obligations as a refugee, but concluded that it was not satisfied that the parents’ affiliation with Christianity in Australia would lead to a real chance of the child applicant being harmed in China. The Tribunal was not satisfied that the parents genuinely intended to raise the child applicant in a “religious or other social framework that would lead to her being directly or indirectly persecuted in China”. [38]
[37] CB 114 at [21]
[38] CB 115 at [21]
The Tribunal expressed conclusions separately in relation to whether it was satisfied the child applicant was owed refugee and complementary protection obligations. The Tribunal found the child applicant was not owed protection obligations under s.36(2)(a).[39] In relation to complementary protection, the Tribunal observed that the complementary protection claims were “essentially the same” as the refugee claims. It found that, “[t]hose claims, which have failed due to a lack of credibility, can no more succeed as complementary protection claims”.[40] The Tribunal adopted the language of s.36(2)(aa) in finding that the child applicant was not owed obligations of complementary protection.
[39] CB 115 at [23]
[40] CB 115 at [26]
The Tribunal considered the additional claim advanced on the child applicant’s behalf as to whether her hearing impairment, and the claim that her paternal grandmother would never accept having a deaf granddaughter, gave rise to complementary protection obligations. The Tribunal found that the child applicant’s father did not suggest that the concerns of his mother would ever be the cause of significant harm. Further, the claim of a lower standard of care being available for the child applicant in China lacked the “essential element of significant harm” required under s.36(2)(aa).[41]
[41] CB 115 at [27]
The current proceedings
In both of these cases, the proceedings commenced with a show cause application filed on 14 November 2016. However, the grounds in those applications are of no continuing relevance. On 22 June 2017, I ordered the Minister to show cause, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), why relief should not be granted in relation to the possible application by the Tribunal of s.91R(3) or s.5J(6) of the Migration Act in respect of the Tribunal’s complementary protection assessment in both cases.
I issued referral certificates under Part 12 of the Federal Circuit Court Rules for the applicants to be represented pro bono. At the trial of the matter on 12 October 2017 the applicants were ably represented by Mr Moutasallem. The Court appreciates the willingness of counsel to appear on this basis.
I have before me as evidence the court books filed on 10 March 2017 and 20 March 2017. Both the applicants and the Minister filed written submissions and also made oral submissions at the trial of the matter. I was assisted by those submissions.
Consideration
Two questions arise in these proceedings: the first is, did the Tribunal purport to apply s.91R(3) or s.5J(6) of the Migration Act in its complementary protection assessment and secondly, if so, did that amount to jurisdictional error?
The applicants contend that, at least in the case of the applicant and the second applicant, that question should be answered in the affirmative. They call in aid the decision by Judge Barnes in SZTDM v Minister for Immigration (No 2) & Anor.[42]
[42] [2013] FCCA 2060
It is necessary to first consider the reasoning of the Tribunal in the case of the applicant and her husband at [73]-[77] where it stated:[43]
I accept that [the applicant] joined a Christian church in Auburn in late 2013 and was baptised in that church in January 2014. I not that this was all before she lodged a protection visa application. As noted, I accept that [the applicant] has some knowledge of Christian teaching. I find on the evidence that she has been regularly attending church but I find she has little to do with her congregation, contrary to the position she has generally suggested about seeking a church environment that was right for her. I do not accept her claim to the effect that no-one would be prepared to write or speak in support of her claim to be an integral or active member of the Auburn congregation. I do not accept on the evidence before me that she has converted anyone. I do not accept she has been preparing to become a preacher or priest.
I note the April 2015 letter from the person who claims to have been under [the applicant’s] leadership at the Auburn church, but the same letter says they were baptised on the same day before the author returned to China for a month. Ultimately, I [have] given this letter very little weight. It does not overcome the problems I have with [the applicant’s] own evidence.
On the evidence before me, I find that [the applicant] engaged in affiliating with a Christian church solely for the purposes of strengthening her claim to refugee status. I disregard her conduct in affiliating with the church and undergoing baptism for the purposes of assessing her claim to refugee status.
On the evidence before me, I am not satisfied that [the second applicant] is a genuine Christian. His evidence about his purportedly Christian past in China does not satisfy me that he grew up a believer in Christianity in China. His arbitrary response to whether he could join a state-sanctioned church in China does not satisfy me that he has ever grappled with this issue as a matter of principle. He has provided no evidence to support his claim about having been baptised in Australia or attending churches here since 2008; rather, he has tended more to argue that work kept him away from going to church for some time. I accept that he has been attending the Auburn church but, on the evidence before me, I find that he has affiliated with Christianity in Australia solely to strengthen his claim to refugee status. I disregard his claimed conduct in affiliating with the church for the purposes of assessing his claim to refugee status.
Neither applicant has provided satisfactory evidence to suggest that their affiliation with Christianity in Australia places them in danger on return to China. [The applicant] claims her baptism and posting of forbidden material to her parents has come to the attention of authorities back in China but, on the evidence before me, I do not believe that claim. As to whether the applicants would affiliate or not affiliate with unauthorised churches in China on return, I find that they would not do so for the sole reason that they are not genuinely interested in doing so.
[43] CB 153-154
That consideration went to the Tribunal’s Refugees Convention assessment. In relation to complementary protection, the relevant reasoning of the Tribunal is at [84] where it stated:[44]
The applicants’ claims to complementary protection are essentially the same claims they have made in their application for protection as a refugee. Those claims, which have failed due to a lack of credibility, can no more succeed as complementary protection claims. Ultimately, I have found that they do not face a real chance of persecution. Accordingly, having regard to the “real risk” test being the same as the “real chance” test, I find that the same claims also fail as complementary protection claims.
[44] CB 155
Applicants’ contentions
The Tribunal decided the complementary protection issue by referring to the same claims raised in the refugee claim, without differentiating between the claims raised in the refugee claim that the Tribunal could have had regard to, and those the Tribunal could not. The applicants conclude that the Tribunal did not consider the evidence of the applicants’ affiliation with the church in Auburn. This is said to give rise to an error.
The importance of the differentiation of issues was a point made by me in SZSFK v Minister for Immigration & Anor[45] at [92]. In that case a reviewer made findings in relation to the complementary protection criterion based on evidence and findings considered in the context of the Refugees Convention claim, but made no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa) of the Migration Act. I stated:[46]
Given the manner in which the Reviewer approached his task (ie to accept the claimed apprehensions and beatings, but to reject the claim under s36(2)(a) for reasons specific to Convention claims), it was not open for the Reviewer to simply say, as he did, that the complementary protection claim was rejected for the same reasons. It was incumbent on him to engage with the language of s36(2)(aa) to consider the evidence relevant to that provision.
[45] [2013] FCCA 7
[46] at [92]
In dealing with the complementary protection claims in the way that it did, the Tribunal is said to have failed to consider the evidence of the applicants’ affiliation with the church in Auburn in its complementary protection assessment. In doing so, the Tribunal is said to have failed to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision.
The applicants submit that there is no appreciation in the paragraphs of the Tribunal’s reasons devoted to the complementary protection assessment that evidence of conduct disregarded for the purposes of the refugee claim is not disregarded for the purposes of the complementary protection assessment.
They submit that it was not open to the Tribunal to simply say that it did not accept the applicant’s claims for the reasons set out earlier in its decision and that it was incumbent on it to consider the applicants’ activities in Australia in the context of s.36(2)(aa).
The applicants further submit that since they relied on their conduct in Australia to support a claim for protection it was incumbent upon the Tribunal to consider that evidence in light of the test pursuant to s.36(2)(aa). In SZTDM, Judge Barnes relevantly stated:[47]
In my view it can be inferred that the Tribunal disregarded the Applicant’s conduct in Australia pursuant to s.91R(3) of the Act for all purposes. However, given the Tribunal’s acceptance of some of the Applicant’s claims about his activities in Australia, it was incumbent on it to engage with the test for complementary protection and to consider the evidence about the Applicant’s activities in Australia in the context of that provision. It did not do so. It failed to apply the correct test and fell into error in the manner contended for in ground 1(a) in the further amended application.
[47] at [76]
Similarly, the applicants submit that in this matter the Tribunal failed to apply the correct test and in doing so fell into jurisdictional error.
In SZTDM it was argued on behalf of the Minister that the Court could be satisfied that the Tribunal was aware that the applicant’s conduct in Australia could only be disregarded for the purposes of the applicant’s Refugees Convention claims and that the Tribunal did not disregard the applicant’s conduct in Australia when considering his complementary protection claims. This was said to be apparent from the Tribunal’s finding that “the applicant will not suffer any harm if he is returned to China”. The Tribunal in this matter made the same finding at [86]. That submission was rejected by Judge Barnes at [76] of her judgment. The applicants submit that the finding that the Tribunal in this matter makes at [86] is insufficient to satisfy the Court that the Tribunal had considered the evidence of the applicants’ conduct when considering the complementary protection criteria.
The applicants submit also that when one reads the Tribunal decision in the parents’ case and compares that with the same member’s decision in the child applicant’s case, it is “quite clear” that the Tribunal committed a jurisdictional error in his decision in both cases.
Minister’s contentions
The Minister accepts that s.91R(3) and s.5J(6)[48] do not apply to the Tribunal’s assessment of an applicant’s claims to be entitled to complementary protection under s.36(2)(aa) of the Migration Act. Further, the Tribunal does not fall into error in addressing an applicant’s claims under the complementary protection provisions of the Migration Act by referring to earlier made findings of fact in connection with Refugees Convention based protection claims.[49]
[48] Section 91R was removed from, and s.5J introduced into, the Migration Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
[49] SZSGA v Minister for Immigration [2013] FCA 774 at [56]; SZSHK v Minister for Immigration [2013] FCAFC 125; (2013) 138 ALD 26 at [32]
The applicant gave evidence of having engaged in the following conduct in Australia:
a)she joined a Christian church in Auburn in late 2013;
b)she was baptised into the church January 2014; and
c)she regularly attended the Auburn church.
The evidence of her conduct in Australia had two purposes (or potential purposes). First, it was evidence that could have supported or corroborated her claims to have been involved in Christian churches in China before coming to Australia, and so was potentially relevant to establishing the truth of those claims and that she faced a Convention-based risk of harm. Secondly, it was evidence that of itself might have raised a claim to be entitled to protection as a refugee or to complementary protection, for instance if authorities became aware of her conduct in Australia (that is, a sur place claim).
The applicants submit that it should be inferred that the Tribunal applied s.91R(3) to the assessment of the applicants’ complementary protection claims.[50] As outlined at [40] above, the applicants submit that the Tribunal “decided the complementary protection issue by referring to the same claims raised in the refugee claim without differentiating between the claims raised in the refugee claim that the Tribunal could have had regard to, and those the Tribunal could not”. However, the Tribunal did not need to differentiate the claims made by the applicants. The applicants, as the Tribunal rightly observed, presented essentially the same claims for refugee and complementary protection purposes (the variations appear to have related to the claims concerning their daughter’s medical condition). The applicants submit that “one is led to conclude” that the Tribunal did not consider the evidence of the applicants’ affiliation with the church in Auburn.[51] However, the applicants do not explain by reference to the Tribunal’s reasons why such an inference should be drawn in this case.
[50] [26]
[51] see applicants’ submissions at [27]
The applicants invite the Court to presume that the Tribunal, having disregarded from its consideration of the adult applicants’ refugee claims certain conduct engaged in by them in Australia (identified by the Tribunal at [75]), also disregarded that conduct for the purposes of its consideration of those applicants’ complementary protection claims.[52] The Minister submits that there is no reason for the Court to presume the Tribunal acted in this way. That is because the Tribunal’s factual findings made in the course of its determination of the refugee claims were plainly encompassed in the Tribunal’s reference to the applicants’ claims at [84] of its reasons.
[52] see applicants’ submissions at [30]
The Tribunal’s reasons should not be read with an eye attuned to the perception of error.[53] The Tribunal’s reasons should be read for what they actually say. It disregarded the adult applicants’ (identified) conduct in Australia for the purposes of determining their refugee claims.[54] It indicated no such exclusion or limitation when it came to determining the complementary protection claims. This is said to be consistent with s.91R(3) (and s.5J(6)): the command in s.91R(3) is not to disregard for all purposes conduct engaged in by a person (where the condition in s.91R(3)(b) is not met), but rather to disregard conduct that strengthens the applicant’s refugee claims.[55] The applicants invite the Court to ignore the express language used by the Tribunal and to presume that the Tribunal had disregarded the applicants’ conduct in Australia for all purposes.
[53] Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
[54] at [75] and [76]
[55] see Minister for Immigration v SZJGV [2009] HCA 40; (2009) 238 CLR 642, see [12] (French CJ and Bell J), [64]-[65] (Crennan and Kiefel JJ)
Even if one were to take the point that the Tribunal’s acceptance of the applicant having joined the Auburn church in 2013 and been baptised in 2014 were not “claims” that had “failed due to a lack of credibility”, having regard to the two purposes of the applicants’ claim to have commenced affiliation with a church in Australia, the Tribunal determined adversely to them that:
a)it did not accept that the applicant’s commencement of affiliation with a church in 2013 or 2014 had anything to do with establishing or re-establishing continuity with practices to which, as claimed, she was genuinely committed back in China;[56] and
b)it did not accept that the adult applicants’ affiliation with a church in Australia would place them in danger on return to China and the Tribunal did not believe the applicant’s claims that her baptism had come to the attention of the authorities in China.[57]
[56] [72]
[57] [77]
In other words, despite the Tribunal having disregarded the adult applicants’ conduct in Australia as identified, it nevertheless made findings based on disbelief and adverse credit, that their Christian conduct in Australia did not raise a Convention-based fear of harm or a basis for complementary protection.
The Minister submits that this is not a case where an error lies in the Tribunal’s failure to “differentiate the issues” as arose in SZSFK. That is because the Tribunal did not reject any of the applicants’ Convention-related claims on the basis of a lack of a Convention nexus (having otherwise accepted as a fact the occurrence of incidents of harm). In SZSFK, the error in the Tribunal’s reasoning with respect to its determination of the complementary protection grounds was that it sought to dispose of the applicant’s grounds on the basis that “such claims are based on the same evidence as his refugee protection claims” and that “on the basis of the evidence provided by the claimant, country information as discussed above and the findings set out above” the complementary protection claim was not made good.[58] Unlike the present case, in SZSFK the Tribunal had accepted factually a number of the applicant’s claims upon which the fear of persecution was based (that she had been detained and assaulted), but went on to find no Convention nexus. In that case, I found that the Tribunal fell into error in referring to and relying on its “findings set out above” in determining the complementary protection claims. I found at [92] that “it was incumbent on [the Reviewer] to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision”.
[58] SZSFK at [89]
The Minister submits that, in the present matter, the Tribunal made no reference to its previous findings at large. The way in which it expressed itself at [84] was to refer expressly to the applicant’s “claims” that had “failed due to a lack of credibility”. These “claims” included the applicant’s evidence of her conduct in Australia as considered by the Tribunal at [72] and [77].
Similarly, with respect to the applicants’ reliance on Judge Barnes’ decision in SZTDM, the jurisdictional error identified by her Honour arose inextricably from the particular expression of the Tribunal’s reasons in that case. The specific point of concern in the Tribunal’s reasoning in SZTDM was the fact that the Tribunal had made adverse credibility findings against the applicant, leading it to conclude that the applicant was not an adherent of the Catholic faith. The Tribunal in SZTDM disregarded the applicant’s conduct in attending a church in Australia under s.91R(3) and in expressing its reasons for finding that the applicant was not owed any complementary protection obligations, referred to its “reasons set out above”.
The Minister submits that the Tribunal in the present matter expressed itself differently at [84] and [86]. As noted above, the Tribunal did not refer to its “reasons set out above”, but rather made reference to the applicant’s “claims” for refugee protection that “failed due to a lack of credibility”. Again, this refers back to the Tribunal’s findings at [72] and [77], distinguishing this case from SZTDM.
As Robertson J stated in SZSGA v Minister for Immigration[59] each case must depend on its own facts and on what the decision-maker’s reasoning in fact was. The Minister submits that the decisions of this Court on which the applicants rely are irrelevant to interpreting this Tribunal’s reasoning in this case and to discerning whether it can be inferred that the Tribunal failed to take into account certain conduct of the applicant in determining her complementary protection claims. No such inference should be drawn.
Resolution
[59] [2013] FCA 774 at [57]
DKN16 and DKO16
In my opinion, the Tribunal did fall into essentially the same error as identified by Judge Barnes in SZTDM in the case of the applicant and the second applicant. I accept that its reasoning is not identical to that of the Tribunal in that case. Nevertheless, there are a number of difficulties with the Tribunal decision. The first is that there is no reference in the Tribunal’s reasoning in respect of complementary protection to any matter left unconsidered by reason of the application of s.91R(3) to the Tribunal’s refugee assessment. That would not matter if it were clear that the Tribunal had made factual findings which were a complete answer to the claim for complementary protection. The Tribunal purports to say that, at [84] where it refers to its adverse credibility findings. That assertion, however, fails to deal with the facts accepted by the Tribunal at [73] but left unconsidered by the Tribunal because of the application of s.91R(3).
The Minister seeks to avoid a finding of jurisdictional error by reference to what the Tribunal states at [77] of its reasons. That submission, however, raises further problems. To the extent that the Tribunal’s reasoning at [77] purports to be a statement of factual findings, it should have preceded any determination by the Tribunal of the application of s.91R(3).[60] This is because the factual findings of the Tribunal will determine whether there is anything which the Tribunal should not consider by reason of the operation of s.91R(3).
[60] see Minister for Immigration v SZJGV [2009] HCA 40
Alternatively, if what the Tribunal states at [77] purports to be a conclusion on the applicants’ claims about their conduct in Australia advanced in support of their protection visa applications, that consideration was undertaken in defiance of the statutory command in s.91R(3) which the Tribunal purported to accept at [75]. The Tribunal’s reasoning at [77] would have been material to the Tribunal’s complementary protection assessment, and the Minister, in effect, relies on it for that purpose, but it is expressed to be consideration bearing upon the Tribunal’s Refugees Convention assessment. In my opinion, it is not open to the Court to restructure the Tribunal’s reasoning in order to afford the reasons a coherence free of jurisdictional error.
I conclude that the Tribunal’s failure to consider, in its complementary protection assessment, the conduct in Australia of the applicant and the second applicant engaged in for the purpose of strengthening their claims for protection is a jurisdictional error. Those applicants should receive relief in the forms of the constitutional writs of certiorari and mandamus. I will so order.
DKP16
In contrast, the Tribunal’s decision in the child applicant is free from error. In that regard, I accept the Minister’s submissions.
The issue the subject of my order to show cause does not arise in this matter, as the Tribunal expressly did not apply s.5J(6), which appears to have been the applicable provision in determining whether it was satisfied that the child applicant had a well-founded fear of persecution for a Convention reason. Contrary to the child applicant’s submission,[61] no conduct was disregarded in this review. The Tribunal considered the parents’ conduct in Australia for the purposes of forming its state of satisfaction in relation to s.36(2)(a).[62]
[61] at [39]
[62] CB 114-115 at [21]
In addressing the complementary protection claims, the Tribunal rejected them for reasons of a lack of credibility. There was no error in the Tribunal, in assessing complementary protection, referring to its anterior factual findings made for the purposes of determining the refugee claims.[63]
[63] SZSGA v Minister for Immigration [2013] FCA 774 at [56]; SZSHK v Minister for Immigration [2013] FCAFC 125; (2013) 138 ALD 26 at [32]
The Tribunal stated at [21] of its reasons:[64]
With regard to the conduct of the applicant’s parents in Australia, I have found in their own case that they engaged in that conduct solely for the purpose of strengthening their claims to refugee status and I have disregarded it as required under s.91R(3) of the Act as it stood at the time of their application. That section of the Act has now been replaced by s.5J(6) but as the conduct in question is not conduct in which the present applicant engaged, I do not disregard it in the present matter. I must consider, then, if the relevant conduct of the applicant’s parents in Australia gives rise to a real chance of the applicant herself being persecuted directly or indirectly (i.e., due to her parents being persecuted) in China in the reasonably foreseeable future. Relevant to this, [DKN16] has provided what I find to be inconsistent and unreliable evidence to the effect that the authorities might be aware of her involvement in a Christian church in Australia, and her father [DKO16] did not satisfactorily argue his activities here would be known to the authorities in China. The applicant’s parents say they have very little to do with other parishioners and church leaders in Auburn. [DKN16] claims, in relation to her own application and this one, that she spent many years not attending church in Australia out of fear of being caught by Australian authorities, rather than out of fear of being detected by Chinese authorities. [DKO16’s] claims about attending church in Australia since 2008 or 2009, when work here allowed him the time, are vague and unsupported. On the evidence before me, I am not satisfied that the applicant’s parents’ affiliation with Christianity in Australia would lead to a real chance of the applicant being harmed in China. I do not accept that the applicant’s parents genuinely wish to raise her in an unauthorised church in China. Whereas [DKN16] gave a plausible reason why a child of the applicant’s age is not yet baptised, I am not satisfied on the evidence before me that her parents genuinely intend to raise her in a religious or other social framework that would lead to her being directly or indirectly persecuted in China. I am not satisfied on the evidence before me that the applicant would become Christian in the reasonably foreseeable future, or would be imputed in China to be a Christian.
[64] CB 114-115
Because the parents’ conduct in this case was not excluded from consideration in the Tribunal’s refugee assessment and the Tribunal made relevant factual findings bearing also on its complementary protection assessment, the Tribunal was entitled to deal with the latter assessment relatively briefly at [26] where it stated:[65]
The applicant’s claims to complementary protection are essentially the same claims her parents have made on her behalf in her application for protection as a refugee. Those claims, which have failed due to a lack of credibility, can no more succeed as complementary protection claims. Ultimately, I have found that she does not face a real chance of persecution. Accordingly, having regard to the “real risk” test being the same as the “real chance” test, I find that the same claims also fail as complementary protection claims.
[65] CB 115
I see no error in the Tribunal’s approach in that case. I conclude that in this case, the child applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 3 November 2017
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