DUA17 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUA17 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1712

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection (Class XA) visas – whether the Tribunal failed to invite the applicant to give evidence – whether the Tribunal misunderstood the applicant’s claims – whether the Tribunal failed to consider integers of the applicant’s claims – whether the Tribunal’s findings were not reasonably open on the evidence – whether the Tribunal’s decision was legally unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425, 476

First Applicant:	DUA17
Second Applicant:	DUB17
Third Applicant:	DUC17
Fourth Applicant:	DUD17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2645 of 2017

Judgment of:

Judge Street

Hearing date:

28 June 2018

Date of Last Submission:

28 June 2018

Delivered at:

Sydney

Delivered on:

28 June 2018

REPRESENTATION

Counsel for the Applicant:

Mr L Karp
Mr G Schipp

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the Respondents:

Ms N Laing

Solicitors for the Respondents:

DLA Piper

ORDERS

Grant leave to the applicants to file in Court the amended application initialled and dated by the Court and the Court dispenses with the need for the filing of an electronic copy of the same.
The amended application is dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $6,410.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2645 of 2017

DUA17

First Applicant

DUB17

Second Applicant

DUC17

Third Applicant

DUD17

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 July 2017 affirming a decision of the delegate not to grant the applicants’ Protection (Class XA) visas.
The first and second applicants are married and the third and fourth applicants are their children. The applicants were found to be citizens of China and their claims were assessed against that country.
The first applicant claimed to fear harm by reason of her foundation and involvement with the Society for Primary Education (“the Society”) from 2007, which aimed to reform primary education in China. The applicant claimed that members of the Society had been arrested and disclosed her involvement with the group. The first applicant claimed her father was arrested and mistreated with a view to locating the first applicant. The first applicant alleges other members of the family have faced investigation. The first applicant claimed to fear harm by reason of her political opinion, including her opposition to the system of education in China, which politically indoctrinates primary school children.
The first applicant arrived in Australia on 13 June 2009 on a subclass UR163 visa, using her passport issued in China. The first applicant applied for a subclass UR163 visa on 28 July 2008, which was granted on 21 January 2009 and expired on 28 October 2013. Within that period of time the first applicant departed Australia on 8 July 2010 and returned on 26 August 2010. The first applicant again departed on 7 April 2011 and returned on 6 May 2011. The first applicant again departed on 20 March 2012 and returned on 26 April 2012. The first applicant again departed Australia on 11 April 2013 and then returned to Australia on 30 April 2013. It was not until 21 June 2013 that the first applicant applied for a Protection visa. Those departures by the first applicant from Australia were returning to China.
The delegate found the first applicant was not a witness of truth and had embellished or entirely fabricated her material claims. A differently constituted Tribunal on 11 November 2014 affirmed the delegate’s decision. That decision was quashed and remitted to the current Tribunal by the Court on 30 November 2016.

The Tribunal

By letter dated 6 March 2017, the applicants were invited to attend a hearing on 27 March 2017. The first and second applicants appeared before the current Tribunal to give evidence and present arguments on 27 March 2017, where the applicants were represented by their migration agent. Post-hearing submissions were also provided to the Tribunal dated 3 April 2017.
The Tribunal found the first applicant not to be a credible witness. The Tribunal found that the first applicant’s claims were narrowly defined and appeared rehearsed. Whilst the first applicant was able to repeat evidence that she had previously given, she struggled to provide meaningful detail and context when this was explored with her by the Tribunal. The Tribunal found the first applicant’s evidence vague, hesitant and uncertain when she was asked about matters that the Tribunal flagged would be the subject of separate questioning involving her husband. The Tribunal found this was apparent during the questioning of the first applicant in relation to her claimed departure from China and as to her first disclosure to her husband of dissident activities. The Tribunal found the generalised nature of the first applicant’s answers led the Tribunal to place little weight on the consistencies between the first applicant’s evidence and that of her husband. The Tribunal drew no adverse inference from the minor inconsistencies that were apparent in the first and second applicant’s evidence.
The Tribunal found the first applicant’s account of the Society’s goals and activities were generalised and repetitive. The Tribunal found there was limited evidence that the Society existed. To this end, the first applicant provided documents which were purportedly internal records substantiating the Society’s existence. The records included an organisational structure showing positions within the Society, as well as the guiding principles of the Society. Copies of these documents were submitted in Chinese without indication of provenance.
The Tribunal had difficulty believing that a secretive society whose immediate purpose was to meet and exchange views and whose membership was limited to less than ten in 2007 would need documents of the nature that were submitted. The Tribunal was also concerned that the first applicant could not explain how she was able to obtain, in 2013, copies of sensitive documents allegedly produced in 2007 and 2009. Accordingly, the Tribunal placed no weight on those documents as independent corroboration of the first applicant’s claims.
Further, the Tribunal determined that the first applicant had also submitted a purported notification dated 24 May 2013, from the District Department of Education office stating her employment had been terminated as she was involved in an illegal organisation and had run away to Australia. The first applicant told the Tribunal that she had taken leave indefinitely prior to the notification and was originally entitled to retain her position until her retirement. The Tribunal observed that there was no evidence to support this assertion or country information that confirmed the practice of indefinite unpaid leave in Chinese primary schools.
The Tribunal gave little weight to the additional documentation provided by the first applicant relating to the Society and concluded there was no persuasive evidence that the Society existed. The Tribunal had doubts as to the first applicant’s claims to have been active with the Society since leaving China in 2009. The Tribunal found it difficult to understand what role the first applicant provided to this small, secretive dissident group in China while she resides in Australia.
The Tribunal noted the first applicant said that she obtained information regarding education in Australia. The Tribunal found it difficult to elicit details about what exactly the first applicant claimed to have provided to her colleagues. The Tribunal found the first applicant spoke vaguely of photographs, craft items, notes and reports. The Tribunal did not accept at face value that any of these items appear linked with her claimed dissident activities.
The Tribunal found no substantiation was provided as to the first applicant’s alleged communications with the Society. The Tribunal found the first applicant did not appear to have turned her mind to discovering like-minded groups in China or Australia, nor to contingency plans on her return trips to China in the event that her involvement with the Society was discovered.
The Tribunal did not accept that the Society existed or that the first applicant had been involved with it as she claimed. The Tribunal expressed doubts regarding the first applicant’s claims to have come to the adverse attention of the authorities. The Tribunal found it difficult to believe that a city official would risk telling the first applicant about official investigations and arrests in circumstances where the official was not involved with the Society and did not know of the first applicant’s involvement. The Tribunal found it was unclear why the police would show her father interview records or name their sources and why the police would seek the first applicant’s whereabouts when they would have known that she had left China at the time of the father’s alleged arrest.
The Tribunal found the first applicant’s evidence of how she learned of the arrest was vague and unconvincing. The Tribunal did not accept the first applicant or her family had come to the adverse attention of the authorities. The Tribunal accepted that the first applicant preferred the Australian system of education and way of life. The Tribunal did not accept the first applicant’s claim that she had a political opinion of the kind that she alleged, or that she felt motivated to act upon it but was only able to do so in China. The Tribunal found the first applicant’s conduct viewed objectively gave no hint of a person with political differences with the authorities. The Tribunal found the first applicant worked as a teacher up till the time of the departure and it was her husband who first made arrangements for the family to travel to Australia.
The Tribunal was not satisfied that the materials that the first applicant claimed to have brought back on her regular visits were political in nature. The Tribunal was not persuaded that the first applicant possessed any strong political opinion of the type alleged or that she would be forced to suppress in China in order to avoid any harm. The Tribunal found the first applicant did not have a well-founded fear of persecution and found the first applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act.

Before this Court

The grounds in the amended application are as follows:
1. The Tribunal acted in breach of s. 425(1) of the Migration Act.
Particulars
(b) Failure to disclose to the applicant an issue that arose on the review, being whether she had considered whether there were other groups in China with objectives similar to the Society for Primary Education (the Society).
(c) Failure to disclose to the applicant an issue that arose on the review, being whether she had considered whether there were groups in Australia with objectives similar to the Society.
2. The Tribunal misunderstood and therefore failed to lawfully consider important parts the first applicant’s (the applicant’s) evidence.
Particulars
(d) Contrary to the finding, or the inference drawn by the Tribunal at CB 455 [73], the applicant did not claim that she carried subversive materials to China on the occasions that she returned.
(e) The first applicant did not claim that the material that she carried back to China was for dissident purposes, but that it was to illustrate educational techniques in Australia.
(f) The Tribunal failed, at CB 452 [62] to understand the applicant’s evidence and claims as to the circumstances of her being told of the Public Security Bureau’s discovery of the Society.
(g) The Tribunal in its reasons at CB 453 [66] failed to understand, and therefore consider the claim, that the applicant’s father had been shown interview records during his interrogation by the PSB to demonstrate to him that the applicant had been implicated in the Society.
3. The Tribunal failed to consider claims, and integers of the applicant’s claims, (a) Failure to consider, in the context of the Tribunal’s statement at CB 450 [57], that it was difficult to imagine the kind of role that the applicant could play in the society after her move to Australia, that she acted as a kind of “consultant” to the Society.
4. The decision was legally unreasonable.
Particulars
(a) In finding that the first applicant’s claims were “narrowly defined” and that her evidence was rehearsed and contrived, the Tribunal in drawing adverse inferences there from ignored the following which would have been evident to any reasonable
Tribunal;
(i) The claims were that she had been an instigator and leader of what was basically a discussion group. They were by their nature narrowly defined.
(ii) That the first applicant had given the same evidence twice before, to the Minister’s delegate and to the first Tribunal, so that it had been rehearsed.
(iii) It was only sensible for a person who was to appear before the Tribunal to prepare beforehand.
(b) The finding that the applicant’s evidence was “vague, hesitant and uncertain” (CB 445 [30]) was not open on the evidence, and particularly that of the transcript.
(c) The finding that the applicant’s account of the goals of the “Society for Primary Education” (the Society) was generalised and repetitive (CB 447 [46]) was not open on the evidence.
(d) The Tribunal’s statement, at CB 455 [73], that it found it difficult to elicit details of the materials that the applicant was providing to her colleagues in China was made in the face of the applicant having fully engaged with questions which were asked of her at hearing.
(e) The Tribunal made an adverse credit finding on the basis of questions that were not asked, that finding being at CB 451 to the effect that the applicant had not at least considered whether there were other groups in China with objectives similar to the Society.
(f) The Tribunal drew an adverse inference as to credit on the basis of questions that were not asked, at CB 451 to the effect that the applicant had not at least considered whether there were groups in Australia with objectives similar to the Society.
(g) There was no rational basis for the conclusion drawn by the Tribunal at CB 451, that the failure of the applicant to take unspecified “precautions” on her return to China on several occasions, at times when her evidence was that she did not consider herself in danger, added to the Tribunal’s impression that she was not part of a dissident group.
(h) The Tribunal, at CB 453 [66] stated that it queried why the police did not know why the applicant had left China when it was claimed that her father had been interrogated and erroneously stated that she did not respond directly. She had said, directly, that the police would know that she had left China. The Tribunal acted on evidence which was not given, and did not exist.
(i) The Tribunal, at CB 453 stated that it asked the applicant to describe the exact circumstances in which she had received news of her father’s detention, and observed “vaguely” that she could not recall. In fact the question was not asked and the Tribunal acted on evidence which was not given, and did not exist.
(j) It was not open for the Tribunal at CB 453 to reach adverse findings on the applicant’s credit to find, on the basis that the applicant had, it said, been able to piece together the chain of events that explained the authorities’ discovery of her role in the Society rather than learn this from her relatives.
(k) The Tribunal’s findings about the applicant’s political views, at CB 454 – 455 [73]-[74] were arbitrary and unreasonable.

Ground 1

In relation to ground 1, Mr Karp of counsel on behalf of the applicants took the Court to the principles concerning the obligation on the Tribunal to give the applicants a real and meaningful hearing and in that regard to raise issues with the applicants. This is a case where the delegate had found the first applicant to be untruthful and the first applicant’s credit was clearly a live issue in the conduct of the review.
Mr Karp took the Court to the reasoning of the Tribunal in relation to expressing concern about the first applicant’s political activities, first in relation to the Tribunal’s concern that a dissident group, which had allegedly been set up in 2007 and grew rapidly and had broad objectives for education and political reform at a national level, such as abolishing the Young Pioneers and reforming the Chinese political system, and had not considered or explored what like-minded groups might exist outside a particular place and given thought to possible links. The Tribunal observed that it was apparent at the hearing that the first applicant had not turned her mind to this.
The second observation in relation to the reasoning of the Tribunal which Mr Karp submitted supported alleged error raised by ground 1 was the reasoning of the Tribunal that it also appeared that the applicant had had many opportunities in Australia to explore whether there are like-minded people in Australia or China apart from the Society itself, to discover whether others share her objectives and even discuss political activities, and that the Tribunal again had formed the impression that the applicant had not turned her mind to these matters, and that that was at odds with her claimed fear of harm because of her political opinions.
Mr Karp took the Court to passages in the transcript which Mr Karp submitted did not support the reasoning of the Tribunal. Mr Karp focused on the absence of any express question to the first applicant as to her locating other dissident groups and the absence of any express question raising with her following up the dissident groups in Australia.
The Tribunal’s reasons are not be read with a keen eye for error. The Tribunal’s findings were conclusions that were inferred by the Tribunal as a result of the evidence that was given by the first applicant. The issues in relation to the applicant’s activities in China and in Australia were raised at page 30.36 of the transcript, in which the applicant was asked whether the Society ever reached out and made contact with other groups in China who might also be interested in discussing about education in form or primary schools. At page 24.20 in the transcript the Tribunal explored with the first applicant whether she had any exchanges with groups in Australia.
In the context the adverse credibility findings by the delegate and the raising of those matters was a sufficient identification of the issue concerning the applicant’s political opinions to mean that the first applicant had a real and meaningful hearing and that there was no breach of s 425(1) of the Act as advanced in ground 1.
The Tribunal made clear to the applicant that the hearing was largely focused on determining the first applicant’s credibility, relevantly, in the transcript at 8.11 and 42.25, and it was in that context that the Tribunal, having referred to the first applicant having had her claims rejected by the earlier decisions, sought to explore whether or not the Society had explored connections with other groups. The first applicant’s response at 30.40 was simply no. It was apparent in that context that the question was asked in the course of considering whether the first applicant was credible in respect of her claims concerning the Society and its existence. This was an issue on which the first applicant was on notice by reason of the adverse decision of the delegate.

The context also included circumstances in which it was alleged that the first applicant founded the Society and they met at a regular place and at a regular time and that it was a secret society and in circumstances where the first applicant had returned to China on a number of occasions and had taken material, none of which could be identified as dissident material. It was a logical and rational inference for the Tribunal to take into account the absence of the alleged Society, exploring what other dissident groups there might be in China, as it was in relation to the first applicant turning her mind to that matter in Australia if, in fact, she held such fears. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

In relation to ground 2(d), Mr Karp submitted that the Tribunal had misunderstood particular evidence. The first particular submitted by Mr Karp was an alleged misunderstanding by the Tribunal in relation to the first applicant not having claimed that she carried subversive or dissident material. There is no error or misunderstanding by the Tribunal in its reasons in relation to the first applicant’s evidence in this regard. The Tribunal’s reasoning took into account the absence of any such material being taken back to China by the first applicant and its impact in relation to the credibility in respect of the first applicant’s claims. That does not reflect any misunderstanding of the first applicant’s evidence. No alleged error as identified in ground 2(d) is made out.
Equally, in relation to ground 2(e), there was no misunderstanding by the Tribunal that the first applicant had claimed that it was dissident material. Rather, the Tribunal was pointing out the logical and rational problem with the first applicant’s alleged claim in the absence of having been taking back dissident material to China if the first applicant had established such a Society and held such particular claims. No misunderstanding is established by ground 2(e) in the amended application.
In relation to ground 2(f), Mr Karp focused on paragraph 62 of the Tribunal’s reasons and advanced that the Tribunal’s reasoning about the problematic nature of the first applicant’s evidence that the city official disclosed to the first applicant arrests of particular people solely on the basis that that person knew that they had been close friends during their teacher training course, almost 10 years earlier. The Tribunal’s reasoning in that regard was logical, rational and reflects no misunderstanding of the first applicant’s evidence. Mr Karp took the Court to pages 25 and 26 of the transcript in relation to why the person allegedly contacted the first applicant in respect of a secret Society. The adverse findings by the Tribunal in relation to the first applicant’s answers were clearly open, logical and reasonable. No jurisdictional error as alleged in ground 2(f) is made out.
In relation to ground 2(g), Mr Karp submitted that the Tribunal had not understood the evidence in relation to the first applicant’s claim that the police showed her father interview records. The Tribunal’s reasons in that regard identified a credibility concern as to there being no apparent reason why the police would show the first applicant’s father interview records or their names and sources. That was a finding in respect of her credibility and it was open to the Tribunal on the material before the Tribunal and did not reflect any misunderstanding of the first applicant’s evidence.
In relation to paragraph 62, the Tribunal raised a number of issues with the first applicant’s account that a city official tipped her off regarding discovery of the Society. The Tribunal observed the official was claimed to have been a classmate of the first applicant and those arrested from the teacher’s college she attended almost 10 years previously. The Tribunal was concerned that there were a number of unanswered questions, including how the official would have known the nature of her ongoing friendship with those arrested and why the official would risk alerting the first applicant if they did not know of her involvement with the Society.
Contrary to the first applicant’s submissions, the questions were not answered by the assertion of the transcript at page 26.7 that the official knew almost all of her friends. I accept the first respondent’s submission that this would be a circular answer. The question was not whether the official knew those arrested but how they knew about the first applicant’s ongoing friendship with them. It was open to the Tribunal to find the question was unanswered as it did and that the question of how the official would have been aware of the nature of the first applicant’s ongoing relationships with members of the Society were of concern.
In relation to paragraph 66, the Tribunal asserted that it put to the first applicant that there was no apparent reason why the police would show her father interview records or identify their sources. It was not the case that it was being advanced that the police wanted to demonstrate to the first applicant’s father that she had been implicated and that there was no point denying it. At page 26.35 of the transcript, the first applicant responded as described by the Tribunal at paragraph 66 and did not respond directly but repeated that the police had told her father that the members had informed them about the Society and warned not to hide the first applicant. The Tribunal explored with the first applicant the illogicality of the police asking questions about her father hiding the first applicant when the police would have been aware that the first applicant had left the country and the first applicant’s response did not meaningfully address that issue. There is no misunderstanding by the Tribunal of the evidence that was given by the first applicant. No jurisdictional error as alleged in ground 2(g) is made out.

Ground 3

In relation to ground 3, the first applicant contends that the Tribunal failed to consider at paragraph 57 that from the time the first applicant left China, the first applicant acted as a kind of consultant for the Society and that when she returned to China she discussed Australian education freedoms with her colleagues. The Tribunal in paragraph 57 identified having significant doubts about the first applicant’s claims to have been active in such a group from the time she first left China for Australia, in April 2009.
The Tribunal referred to the difficulty in imaging what type of role it was the first applicant could undertake whilst residing in Australia in respect of such a small dissident group and in the context of a need for secrecy and the recruiting work that might be needed and the need for a leader to keep abreast to local developments. The Tribunal expressly referred to the first applicant’s contribution to the group where the first applicant said, in her honorary role as the group’s founder and as an external consultant, she obtained useful information about primary education in Australia.
It was open to the Tribunal to find that it was difficult to elicit details of what exactly the first applicant was providing to her colleagues. The Tribunal noted that when asked what materials the first applicant took back to China on her return visits, the first applicant’s response spoke vaguely about photographs, craft items and various notes and reports. It was in that context that the Tribunal found that it did not accept at face value that any of these items were linked with the first applicant’s claimed dissident activities. That was a finding that was logical, reasonable and open to the Tribunal.
There was no integer of the first applicant’s claims to fear harm that was not addressed by the Tribunal. The Tribunal made dispositive findings in relation to the first applicant’s claims and squarely considered the first applicant’s evidence in relation to her alleged activities as a consultant. The Tribunal found that evidence unpersuasive, and it was open to the Tribunal to do so given the alleged secretive nature of the Society and the other evidence of the first applicant referred to above. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

In relation to ground 4, Mr Karp took the Court to various findings that it was contended were not legally reasonable in the context of the evidence that had been given. None of the findings advanced by Mr Karp in paragraphs (a) to (k) identify any finding that was not logically, rationally and reasonably open to the Tribunal.
In relation to paragraph 4(a), Mr Karp referred to the Tribunal’s adverse credibility finding relevantly in paragraph 30 of the Tribunal’s reasons that the first applicant’s claims were narrowly defined and appeared rehearsed. The Tribunal found the first applicant struggled to provide meaningful detail in context. The Tribunal referred to the first disclosure to her husband of her dissident activities and details in the context of a claimed hurried departure from China and found the first applicant’s evidence to be vague, hesitant and uncertain when taken separately from her husband. The Tribunal found that a particular concern was the first applicant’s evidence about the immediate response after the authorities allegedly arrested her colleagues and her hurried departure from China. The Tribunal referred to forming the impression that the first applicant gave detailed consistent evidence in relation to her stated claims but that this appeared to be rehearsed, lacking in context and somewhat contrived. A fair reading of the transcript supports each of those adverse findings by the Tribunal. The first applicant’s answers to questions identified in the transcript on a number of occasions were objectively not responsive, and it was open to the Tribunal to make the adverse credibility findings in the context of what was a narrow scope of claimed fear of harm by the applicant.
The fact that the first applicant had given evidence twice before is not a factor that diminished the adverse credibility findings as being open to the Tribunal. The first applicant could not recall the exact circumstances of her disclosure to her husband, or whether or not he met the other founders of the society. The transcript does reveal the Tribunal having difficulty obtaining listing a clear response from the first applicant to her communications with her husband after she learned that her friends had been arrested. No legal unreasonableness is made out as alleged in relation to ground 4(a).
In relation to ground 4(b), the adverse finding by the Tribunal that the applicant’s evidence was vague, hesitant or uncertain was open on the face of the transcript before the Tribunal. The transcript identifies a number of occasions where the applicant’s response could be so characterised. It is not necessary to give detailed examples in relation to this. However, the questioning in relation to the applicant and what her father was interrogated about and her assertion that it was including the topic of the father not hiding the daughter in circumstances where the daughter would have been known to the police to have left the country was an obvious area in which the Tribunal could have so characterised the applicant’s evidence. No jurisdictional error as alleged in ground 4(b) is made out.
In relation to ground 4(c), The Tribunal’s adverse finding about the first applicant’s goals of the society were generalised and repetitive and could not be said to be a finding that was not open. It was at the highest level of generality that the first applicant was describing the nature of the society. Although the first applicant claimed generally and repeatedly that the Society wanted educational reform, what this involved and how this was intended to be accomplished by their activities was left uncertain. The abolition of another particular group or opposition of another particular group does not support the Tribunal’s reasoning in relation to the adverse credibility criticism identified in paragraph 4(c) not being open and reasonable. No jurisdictional error as alleged in ground 4(c) is made out.
In relation to ground 4(d), this criticised the Tribunal’s reasoning in paragraph 73 that the Tribunal found it difficult to elicit details of the materials that the first applicant had provided to her colleagues in China. That was, again, a finding that was objectively open in the context of the answers given by the first applicant. At page 30.21 of the transcript, the Tribunal sought to clarify what exactly were the items the first applicant claimed to have taken back to China and the first applicant responded generally, stating that the materials included photographs of children at the school where she talks and craft made by children, reports and notices and some news about education that the first applicant cut out from newspapers.
In that context, it was open to the Tribunal to find that this level of detail did not correspond to the exact detail that the Tribunal had requested, especially in the context of the credibility findings of which the first applicant was on notice. No jurisdictional errors are made out by ground 4(d).
The proposition in ground 4(e) identifies a false assumption that the Tribunal was purporting to state a question that had been asked rather than making a finding in relation to credit. It was open to the Tribunal based on the first applicant’s answer without elaboration or explanation to make findings in respect of inference drawn that the first applicant had not reached out to other groups in China who may be of interest in relation to such topics. No jurisdictional error as alleged in ground 4(e) is made out.
In relation to 4(f), the adverse finding by the Tribunal in relation to the first applicant’s credibility in respect of not reaching out to groups with similar objectives in Australia was open to the Tribunal. It was a logical and rational matter for the Tribunal to take into account in the context of the first applicant’s alleged political claimed fear of harm for political grounds. No jurisdictional error as alleged in ground 4(f) is made out.
In relation to 4(g), no irrationality or unreasonableness is made out by reason of the Tribunal taking into account the absence of the first applicant taking precautions in respect of returning to China on several occasions in respect of her alleged secret society. The argument that the first applicant’s Society had not been discovered or that her father had not been arrested does not sit with the first applicant’s claims that having disclosed the Society to her husband steps were made to leave China. The fact that there may be other explanations or other findings open does not give rise to irrationality or unreasonableness in relation to the Tribunal’s findings raised in ground 4(g).
It was open to the Tribunal to find that the lack of cautions taken by the first applicant on returning to China supported the finding that she was not part of any dissident group. The first applicant’s explanation was one that was open to the Tribunal to reject in relation to her being safe at the time because the Tribunal had not yet been discovered. It was not unreasonable for the Tribunal to draw an adverse inference from the suggestion that the first applicant took no precautions on her regular return trips to China. No jurisdictional error as alleged in ground 4(g) is made out.
In relation to ground 4(h), Mr Karp submitted that the Tribunal had incorrectly characterised the evidence in the reference to the Tribunal having queried why the police would not already know that the first applicant had left China. Mr Karp took the Court to the passage at page 26 in the transcript where the first applicant responded to a statement by the Tribunal:
So but the police would have realised you were in Australia, wouldn’t they?
And the answer was, “Yes”.
Mr Karp submitted that, in those circumstances, a proposition that the first applicant did not respond directly was not open and that the finding of the Tribunal in relation to credit on this issue was legally unreasonable.
The question of the Tribunal must be taken in its context. The Tribunal was seeking to explore with the first applicant the subject matter that the police were allegedly interrogating the father over seven days. On the subject matter, it was said by the first applicant to include asking her father not to hide her. It was in that context that the Tribunal was raising the obvious fact that the police would have known the first applicant was in Australia because the first applicant would have left using her passport. The first applicant’s response does not address the concern raised by the Tribunal in the context of the first applicant’s assertion that her father was being asked not to hide her when she was not in China. The answer was one that could properly be described as not responding directly to the question raised by the Tribunal. There was no legal unreasonableness in relation to the adverse finding on credit identified in paragraph 4(h).
Further, even if a different view was taken in respect of the characterisation of what the Tribunal has said was not responding directly because of the response, “Yes”. This is not an error of itself that could be said to be material or significant and would not give rise of itself to any jurisdictional error and it was not contended by Mr Karp that it could do so. No jurisdictional error is made out by ground 4(h).
In relation to ground 4(i), Mr Karp attacked the Tribunal’s reasoning that the first applicant had replied vaguely in relation to describing the exact circumstances in which she received news of her father’s detention and that she could not recall. The Tribunal’s concerns in relation to the first applicant’s credit refer to asking the applicant to describe the exact circumstances in which she received news from China about her father’s detention, that is, where she and her husband were and what they were doing. Mr Karp took the Court to the transcript at page 35, and in particular the reference to the question:
Where exactly was your husband when he – when you told him or when he learned that your father and your siblings had been mistreated?
The response to that question was, “In Australia”.
The first applicant was then informed that the Tribunal was aware of where he was and that the Tribunal was asking the applicant to tell the exact situation:
Did you tell him one evening over dinner, or did you telephone him at work and say, “Oh my God. my father has” – how did you tell him?
The first applicant’s response was:
On 28 May, after I got a call from my sister, I told my husband about the mistreat of my father and my brother and sister, and also I told my husband that my father was beaten and – which caused the deafness in his ear.
The Tribunal member again raised with the first applicant:
Okay. And where exactly was – you said, “I told my husband”. I’m asking for specifics if possible, so did you telephone him? Did you speak in person? Where exactly were you? I would like you to give me some specific information, please – not general, but specific.
And the first applicant responded:
At home. I spoke to him in person.
The Tribunal member then raised with the first applicant:
Okay. Was he at home when you received the call from your sister?
The first applicant then responded:
I can’t remember quite clearly. Maybe when I got the call from my sister, my husband wasn’t at home. And my sister – actually my sister called me.
The Tribunal member again pressed, trying to find out exactly how the husband discovered and the first applicant said:
I told him in person.
The observation by the Tribunal that the first applicant’s evidence was vague was objectively open to the Tribunal and cannot be said to be a finding that was not reasonable. The proposition that the Tribunal’s summary in relation to credibility concern was not the subject of a question asked and was not the subject of evidence given unfairly characterises the Tribunal’s reasons which, on a fair reading, reflect raising the credibility concern with the first applicant, the subject of the adverse finding. No jurisdictional error as alleged in ground 4(i) is made out.

In relation to ground 4(j), Mr Karp sought to take issue with the Tribunal’s finding in relation to finding it difficult to believe that the first applicant had been able to piece together the chain of events that explain the authority’s discovery of her role in the society and what led them to her father and siblings. That was an adverse finding that was open to the Tribunal. It cannot be said to be illogical or unreasonable. In that context, the Tribunal had raised concerns regarding why the authorities would reveal records and interviews and in relation to the question raised in respect of questioning the father in circumstances where she had already left China. There is no illogicality or unreasonableness as alleged in ground 4(j). No jurisdictional error as alleged in ground 4(j) is made out.
In relation to ground 4(k), Mr Karp took issue with the Tribunal’s credibility findings in paragraphs 73 to 74, in relation to having significant concerns about the first applicant’s political opinion, motivating her to engage in activities in the past or in respect of ongoing political interest. The Tribunal’s reasons were not arbitrary or capricious or unreasonable. The Tribunal gave detailed reasons for its findings in paragraphs 73 and 74. The Tribunal had regard to the first applicant’s ability and willingness to work as a teacher and assessing whether there was any objective evidence of her political opinion. It was open for the Tribunal to have regard to the first applicant’s decision not to seek protection until 2013.
Although the alleged risk was said to have been heightened at this time, the first applicant claimed to have experienced issues with Chinese authorities for several years prior to the application which required her to keep her political activities secret and motivated her family to travel to Australia. The Tribunal’s observation that the material she took back did not appear to be political in nature was also clearly relevant to the adverse finding in respect of the first applicant’s political opinions. The adverse finding in ground 4(k) was not legally unreasonable. No jurisdictional error as alleged in ground 4(k) is made out.

Conclusion

As the amended application fails to make out any jurisdictional error, amended application is dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 August 2018

[2018] FCCA 1712

28 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction