DTJ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 728
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTJ22 v Minister For Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 728
File number(s): SYG 1724 of 2022 Judgment of: JUDGE LAING Date of judgment: 18 August 2023 Catchwords: MIGRATION - application for judicial review of a decision by the Administrative Appeals Tribunal refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa – whether the Tribunal failed to conduct a proper review – whether the Tribunal’s decision was legally unreasonable – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: EVI19 v Minister for Immigration [2022] FCA 518
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; (2019) 78 AAR 464
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 6 August 2023 Date of hearing: 23 June 2023 Place: Sydney Counsel for the Applicant: Mr L Boccabella Solicitor for the Applicant: Parish Patience Bitel Pty Ltd Counsel for the First Respondent: Mr M Cleary Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 1724 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTJ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
18 August 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant is a citizen of the People’s Republic of China who arrived in Australia some time ago. The applicant’s last visa was cancelled in 2019, after he was convicted of criminal offences. The applicant applied for a protection visa on 9 February 2021.
On 11 June 2021, the Delegate refused the protection visa application.
The applicant applied to the Tribunal for review of the Delegate’s decision on 16 June 2021. He attended a hearing before the Tribunal on 12 July 2021.
On 19 October 2022, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter, the criteria in issue and a summary of the evidence that was before it at [1]-[45] of its decision.
The Tribunal accepted that the applicant had been influenced by his experiences in Australia and disagreed in some respects with the system in China. However, the Tribunal considered that the applicant’s political opinion was nothing more than a preference for the system in Australia. The Tribunal considered that the applicant’s reasons for not returning to China were essentially those disclosed in his located person interview i.e. that he felt that he had “nothing in China”. The Tribunal observed that in his personal circumstances form responding to cancellation of his previous visa, the applicant had raised differences between Australia and China as an impediment to his return. However, the Tribunal did not accept that the applicant had claimed there that he would be harmed due to his political opinion. The Tribunal considered that the applicant did not appear to have publicly expressed his political opinion in Australia. The Tribunal was not satisfied that the applicant would engage in any political activity in China that would bring him to the attention of the Chinese authorities (at [48]-[53]).
The Tribunal did not accept that the applicant would be declined reissuance of his household registration, or face a real chance of relevant harm on account of his household registration having been cancelled. In this regard, the Tribunal observed that the applicant had not claimed to face harm on this basis when he first applied for protection in Australia. At his hearing before the Tribunal, the applicant had appeared not to know his options regarding re-registration. No corroborative evidence was provided to support the checks that may occur for the purposes of a new household registration certificate, nor the consequences that may flow from such checks (at [54] to [56]).
The Tribunal had regard to the evidence before it relating to the applicant’s previous convictions in Australia, as well as to country information regarding the potential for further prosecution in China. Although the Tribunal accepted that it was possible that the applicant would be re-prosecuted in China, the Tribunal was not persuaded that there was a real chance of this occurring. Country information indicated that such an occurrence was extremely rare. The Tribunal considered that there was no corroborative evidence that the authorities in China had demonstrated interest in the applicant or would have such an interest upon the applicant’s return (at [57]-[66]).
The Tribunal was not satisfied that the applicant had been diagnosed with a mental health condition that would result in relevant harm in China. As this claim was made after the Tribunal hearing without corroborative evidence, the Tribunal considered that it had been manufactured. The Tribunal observed that the applicant had not identified how his claim regarding COVID was capable of meeting the definition of significant harm for the purposes of the protection criteria. The Tribunal was not satisfied that if the applicant became sick with COVID this would result in an arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment (at [76]-[78]).
The Tribunal’s reasoning at [69]-[75] of its decision is the focus of many of the applicant’s complaints in relation to the Tribunal’s decision. It is therefore appropriate to set it out fulsomely:
69. The applicant told the Tribunal that he had never been assaulted in Australia by gang members. He told the Tribunal hearing about the bashing he received when he was in China in 2016, which was in accordance with the claim contained in the written statement attached to his protection visa application. However, the Tribunal was concerned by the fact that the applicant did not repeat this claim when he had his interview with the delegate to discuss his protection claims. In that interview, the applicant was asked whether he had any problems during his 2016 trip overseas. He said he did and when asked to detail what happened, he said in Hong Kong he was found by a gang member who said that he was owed money and he was asked to continue working for the group in Australia. He did not detail that he was assaulted.
70. The Tribunal asked why the applicant did not raise this assault during his interview with the delegate. The applicant said that he was not asked the question. The Tribunal does not accept that to be correct. In the subsequent statement to the Tribunal addressing this issue, the applicant reiterated that he mentioned this assault in his original statement accompanying the protection visa application.
71. The Tribunal asked the applicant why he did not raise any of his claims concerning his fear of harm from the gang in the AAT review of the decision to not revoke the cancellation of his previous visa. The applicant responded that it did not occur to him that his claims concerning the gang could form the basis for the cancellation decision to be revoked. He claimed that he told his agent at the time that he owed money to the gang. After the Tribunal hearing, the applicant provided a statement where he directed the Tribunal to the fact that a submission was made that he felt 'under threat' by people 'demanding repayment of the money' which was discussed at paragraph 135 of the AAT decision. The Tribunal accepts that the applicant provided that to that Tribunal as a reason for the offending and was not provided in the context of claiming that he would be harmed by gang members upon his return to China.
72. The Tribunal also queried why the applicant would not raise any of his claimed fear of harm from the criminal gang at his located person interview in April 2020. The applicant responded that his claim about the debt was detailed in a 2016 pre-sentence report. The Tribunal observes that no such report was provided to the Tribunal. The applicant responded that he did not think his fear of harm concerning the gang was relevant as the located person interview in April 2020 was concerning his connection to the Australian community.
73. Considering all the applicant's evidence about his claimed involvement with the gang in Australia, his claimed past experience of harm at their hands due to a bashing overseas in 2016, and his claim that a debt was owed, and that he had been instructed while in prison that the money needed to be returned, the Tribunal is not satisfied that if there was any truth to his claims that he owed a debt, had been harmed overseas, or was considered a traitor to the gang, those claims would not be detailed in the located person interview in 2020, or in the applicant's response to the 501 notice, or be cited as a reason in the AAT review of the decision to not revoke the cancellation of his visa as a basis for protection claims.
74. Rather, the Tribunal is satisfied that while the applicant has been involved in criminal activity with a 'gang' as demonstrated by his criminal history, the Tribunal is not satisfied that there is any truth to the applicant's claims that he has been previously harmed due to this association or due to a debt related to the money which was confiscated, or that he will be harmed in the future.
75. Rather, the Tribunal is satisfied that the applicant has no fears of harm from the gang and decided to fabricate this claim in order to lodge a protection visa. The Tribunal suspects that any claim in a pre-sentence report concerning the debt (if there had been such a claim) or explanation about fear due to demands of a debt' made in the course of the AAT review was manufactured to explain the context of the offending, not because there was any truth to the claim.
Having regard to the above, the Tribunal concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, the Tribunal affirmed the Delegate’s decision (at [80]-[83]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court through an application filed on 23 November 2022 relying upon the following grounds:
1.The AAT failed to properly apply the real chance test in the assessment of whether the applicant was owed protection obligations;
2.The AAT failed to conduct a proper review under ss414 and 415 and generally under Part 7 of the Migration Act 1958;
3.The AAT failed to properly apply and interpret s36 of the Migration Act 1958.
4.The decision of the AAT was unreasonable.
By the time of the hearing of this matter, I did not understand grounds 1 or 3 to be pressed. The applicant made no submissions in support of those grounds nor explaining their basis. No misapplication of the real chance test, nor of s 36 of the Migration Act 1958 (Cth) (Act), is apparent upon my reading of the Tribunal’s decision.
Ground 2 – conduct of the review
Ground 2 contended that the Tribunal “failed to conduct a proper review under ss414 and 415 and generally under Part 7” of the Act.
Section 414 of the Act generally requires the Tribunal to conduct a review following the making of a valid application. Section 415 of the Act articulates the Tribunal’s powers upon review. The applicant did not explain with any precision how these provisions of the Act were contended to have been breached, nor how such breach was contended to have resulted in jurisdictional error.
From the applicant’s written submissions, the applicant appeared to take issue with [75] of the Tribunal’s decision. There, the Tribunal found that the applicant’s claims to face harm from a criminal gang had been fabricated in order to lodge a protection visa. The applicant contended that this was an error as identified in Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) where it was stated (per Brennan, Dawson, Toohey and Gaudron JJ):
37.There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied. . . . [A]s a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.
The applicant further contended that:
(a)it was never put to the applicant during the Tribunal hearing that he had fabricated his evidence and he therefore never had an opportunity to respond to that allegation; and
(b)the Tribunal embarked on a “quest to disbelieve”, therefore falling in to the species of error considered in EVI19 v Minister for Immigration [2022] FCA 518 at [148] (Stewart J) (EVI19).
The case of Smith concerned procedural fairness within the context of disciplinary proceedings regarding a barrister. However, the present case is a migration case. The Tribunal’s procedural fairness obligations were accordingly limited under Part 7 of the Act: s 422B(1).
The applicant relied upon s 422B(3) of the Act, which provides that in applying the provisions under Division 4 of Part 7, “the Tribunal must act in a way that is fair and just.” However, s 422B(3) is not an independent source of rights for an applicant, but conditions the exercise of the Tribunal’s powers under Division 4 of Part 7 of the Act: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 (Li) at [54]-[58] per Hayne J, Kiefel J (as her Honour was) and Bell J; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [36] per Bell, Gageler J and Keane JJ. The role played by s 422B(3) in informing what is required from a procedural fairness perspective in the Tribunal’s exercise of its procedural powers and functions under Division 4 of Part 7 of the Act is an important one. However, it must be recalled that it occurs within a particular statutory context provided under Part 7 of the Act.
The applicant at hearing appeared to have some difficulty in identifying how the Tribunal could be said to have failed to have conducted the requisite review by reference to its procedural fairness obligations under Part 7. During the hearing, it was suggested that the Tribunal breached s 424A of the Act by failing to put to the applicant its conclusions expressed at [75] of its decision. However, it is clear from SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) that such conclusions were not “information” capable of enlivening s 424A of the Act.
I have considered whether the applicant was sufficiently on notice that the credibility of his account regarding criminal gangs was in issue for the purposes of s 425 of the Act, or whether the Tribunal fell into the species of error considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
I consider that the applicant was sufficiently on notice that his credibility in this regard was in issue. The Delegate’s decision indicates that the Delegate found various aspects of the applicant’s claims in this regard to be “implausible” or evidence of “the applicant making up his claims as he goes along”. The Delegate rejected that the applicant owed a debt to a criminal gang and that he was threatened or beaten by gang members overseas. The Delegate found that the applicant had “concocted these claims to assist with his attempt to remain in Australia” (CB 168-169). The Tribunal further put to the applicant at his hearing before the Tribunal that the fact that he had not made his claims on earlier occasions “might suggest” that “none of those threats or the debts actually are true” and that he’d “just invented them to get a protection visa” (page 10 of the transcript before the Court).
Having regard to the above, I do not accept that the applicant was not on notice of, and therefore not given an opportunity before the Tribunal to respond to, any issue that he may have fabricated evidence regarding his claimed fears of harm from the criminal gang. I do not accept that the applicant was denied a meaningful hearing, as required under s 425 of the Act.
I also do not accept that the Tribunal’s reasoning reveals that it was on a “quest to disbelieve” the applicant, in the sense considered in EVI19 at [148]. In that case, by reference to several aspects of the Tribunal’s reasoning that were found to have not been open to the Tribunal, the Court held that the Tribunal’s reasoning process was “highly unreasonable” in a manner demonstrating jurisdictional error. For the reasons given in relation to ground 4 below, I am not persuaded that the reasoning underpinning the Tribunal’s adverse credibility findings at [75] was relevantly closed to the Tribunal.
For the above reasons, ground 2 is unable to succeed.
Ground 4 – legal unreasonableness
Ground 4 contended that the Tribunal’s decision was legally unreasonable. The applicant relied upon a number of authorities in support of the ground, including what was said by Allsop CJ in SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; (2019) 78 AAR 464 at [40]:
40.The development of the law on legal unreasonableness since Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 and Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 has seen the clearer recognition that findings of fact, even ones based on credit, are not immune from judicial review based on jurisdictional error. See, for example and in particular, the important judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99. It can be accepted that credit findings have a particular and important place in decision-making, whether of courts or tribunals: see the remarks of McHugh J in Re Minister; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67]. For this reason, no doubt, a court exercising the power of judicial review should be cautious in its approach to deciding whether the decision-maker, in dealing with the factual material, including the oral evidence of the applicant, has failed to exercise its statutory task by an approach which can be criticised as seriously irrational, illogical or lacking material foundation in important aspects. There is no formula involved. Careful attention must be paid to the reasons and approval of the decision-maker: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) not for the purpose of ascertaining the facts, but for the purpose of deciding whether the approach of the tribunal was sufficiently lacking in foundation, rationality, or logical coherence in a way that could have affected the outcome so as to be legally unreasonable. It can be accepted that reasonable differences of views as to material are insufficient to found legal unreasonableness. The flaw in the fact-finding or treatment of the evidence must be sufficiently seriously illogical, irrational or groundless as to compromise the decision, in that the credit finding can be seen as compromised. See the Full Court decisions which deal with the review of credit findings: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; ASB17 v Minister for Home Affairs [2019] FCAFC 38; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175. I refer to what I said in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [60]-[65].
The Minister accepted that relevant error may be demonstrated where a decision is devoid of an “intelligible justification”, or is a decision to which no rational or logical decision maker could arrive on the same evidence: Li at [76] per Hayne J, Kiefel J (as her Honour was) and Bell J. However, the Minister emphasised that the threshold for such grounds was a high one. The Minister submitted that where a Tribunal’s reasons disclose a justification for its conclusion, legal unreasonableness will rarely be found: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [84] per Nettle and Gordon JJ.
One manner in which the applicant contended that legal unreasonableness occurred was through the Tribunal’s reasoning at [69]. That reasoning was relevantly as follows:
69. … However, the Tribunal was concerned by the fact that the applicant did not repeat this claim when he had his interview with the delegate to discuss his protection claims. In that interview, the applicant was asked whether he had any problems during his 2016 trip overseas. He said he did and when asked to detail what happened, he said in Hong Kong he was found by a gang member who said that he was owed money and he was asked to continue working for the group in Australia. He did not detail that he was assaulted.
The applicant submitted that the Delegate’s report of the interview did not reflect the above. The applicant submitted that there was no evidence that the questioning at interview was as detailed as had been considered by the Tribunal. The applicant further submitted that it was unreasonable for the Tribunal to have expected the applicant to have repeated his evidence at interview.
A difficulty with the applicant’s submissions is that he has not placed before the Court any evidence, such as a transcript, establishing exactly what was and was not said at his interview with the Department. The applicant’s Counsel responded to this difficulty, when raised at hearing, by submitting that there was no transcript of the interview in the Court Book. However, as I drew to his attention, even if no written transcript was before the Tribunal, it is apparent from CB 71 that an audio recording of the interview was both made and provided to the applicant’s representatives. This was, likely, the source of the Tribunal’s summary of the interview at [69]. The applicant has not demonstrated that this summary was inaccurate.
I do not accept that it was legally unreasonable for the Tribunal to have been concerned that the applicant had not mentioned his written claim of having been assaulted at interview, when he had been asked to detail what had happened and whether he had experienced any problems during his 2016 trip overseas. The claimed assault during this trip formed an important part of the applicant’s claims. Given the significance of the claim, I am not persuaded that it was relevantly closed to the Tribunal to have been concerned that it was not raised by the applicant in response to being directly asked at interview to detail the problems that he had encountered during that trip. Having regard to the above, it was open to the Tribunal not to have accepted the applicant’s explanation described at [70] of the Tribunal’s decision i.e. that he had not raised the assault because he was not asked the question.
I also do not accept that it was legally unreasonable for the Tribunal to have been concerned at [71]-[72] that the applicant had not mentioned his claimed fears of harm during his located person interview in 2020 or during the cancellation review process before the Tribunal.
The applicant submitted that there was “just no legal point making a non-refoulement issue” in a cancellation case. This was having regard to Direction 79 made under s 499 of the Act, which stated at 10.1(4):
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa should be cancelled.
I do not accept the applicant’s submission. Non-refoulement obligations were not irrelevant to the question of cancellation simply because the Tribunal was not obliged to determine in a fulsome sense whether or not they were owed. The potential for non-refoulement obligations to be owed was still a consideration that was capable of weighing against the cancellation of the visa, even if the question of whether or not they were owed was not required to be determined through this process. Notwithstanding this, the applicant made no claims to face harm from gang members in China. Instead, when asked within the context of this process whether he had any concerns or fears about what would happen to him if he returned to China, the applicant raised that his values were no longer compatible with the Chinese system and stated that he would be unable to find a job or have the skills to survive in China with no place to live (as recorded at [24] of the Tribunal’s decision).
Whilst the located persons interview may not have been primarily for the purposes of assessing protection claims, the applicant appears to have been asked during this interview “whether there were any reasons why he could not return to China” and to have responded “yes” because he had “nothing there” (at [26]). Given the nature of this exchange, I am not persuaded that it was closed to the Tribunal to have been concerned that the applicant had not raised his subsequently claimed fear of harm from gangs as a reason “why he could not return to China” during the interview.
Having regard to the above, I am not persuaded that jurisdictional error has been demonstrated under ground 4. The Tribunal gave reasons for finding at [74]-[75] that the applicant’s claims to fear harm from the gang were not credible and for its conclusion that they had therefore been fabricated. Those reasons were intelligible. I have not been persuaded that those reasons were reasonably or logically closed to the Tribunal based upon the material before it. Whilst another decision maker may have reasoned differently, this is not sufficient to meet the high thresholds associated with grounds such as legal unreasonableness and illogicality.
CONCLUSION
For the foregoing reasons, the application will be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 18 August 2023
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