SZRLB v Minister for Immigration

[2014] FCCA 2851

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRLB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2851

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – whether interpretation was inadequate – whether Tribunal did not give applicants reasonable time to provide relevant materials – whether Tribunal did not take into account all relevant material – whether Tribunal misconstrued s.36(2)(aa) of the Migration Act 1958 (Cth) – jurisdictional error found – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 91R, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
SZRMQ v Minister for Immigration and Border Protection & Anor [2013] FCAFC 142
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138
Minister for Immigration and Citizenship v WZANC [2010] FCA 1391; (2010) 119 ALD 275
SZRQR v Minister for Immigration & Anor [2013] FMCA 21
SZRSA v Minister for Immigration & Anor [2012] FMCA 1187
SZSFK v Minister for Immigration and Border Protection & Anor [2013] FCCA 7
SZSXH v Minister for Immigration and Border Protection [2014] FCA 914
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9

First Applicant: SZRLB

Second Applicant: SZRLC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3034 of 2013

Judgment of: Judge Nicholls

Hearing date: 10 November 2014

Date of Last Submission: 10 November 2014

Delivered at: Sydney

Delivered on: 5 December 2014

REPRESENTATION

First Applicant: In Person

Second Applicant: In Person

Solicitors for the Respondents: Ms D Watson of Australian Government Solicitor

ORDERS

1. A writ in the nature of certiorari issue quashing the decision of the second respondent made on 8 November 2013.

2. A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.

3. The first respondent pay the applicants’ costs of fees and payments made to this Court in relation to this matter.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3034 of 2013

SZRLB

First Applicant

SZRLC
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 6 December 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 November 2013 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

1. In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”). The following background is relevant.

2. The applicants are wife and husband. Both are citizens of the People’s Republic of China (“China”). The first named applicant (“the applicant”) arrived in Australia on 18 April 2011 as a visitor (CB 16). She applied for a protection visa on 6 May 2011 (CB 4 to CB 28). The second named applicant applied for a protection visa as a member of her family unit (CB 4 to CB 35).

3. The applicant’s claims were initially set out in a written statement (CB 46 to CB 49 and see also a further statement at CB 57). She claimed to have been arrested and detained in May 2005 when teaching Sunday school in China. She stated she was again arrested in September 2010, badly beaten and detained for a day and a night. She described her church as a “family church”. The applicant claimed she was released on payment of a fine, and signed a “guarantee” that she would not teach Sunday school or attend church.

4. The applicants claimed to have paid a bribe to obtain their passports and to join a tour group visiting Sydney. They abandoned the tour group the day after arrival, while visiting the Sydney Opera House.

5. The delegate refused their application on 21 June 2011 (CB 80 to CB 102). The delegate had significant concerns about the credibility of the applicant. In particular, he was concerned with the applicant’s lack of depth of relevant understanding, which was not what would be expected from someone who claimed to be ‘a devoted Christian and Sunday School teacher” (CB 98.8).

The Tribunal

1. The applicants applied for review to the Tribunal on 8 July 2011 (CB 103 to CB 106). On 23 March 2012 the Tribunal, as differently constituted, affirmed the delegate’s decision on the basis that the applicants were not witnesses of truth (CB 143 to CB 191). The applicants sought judicial review. On 19 September 2012, by orders made by consent, this Court remitted the matter to the Tribunal for reconsideration (see note at CB 194).

2. The applicants were invited to attend a hearing before the Tribunal on 2 April 2013 (CB 208 to CB 209). The Minister’s written submissions filed in these proceedings set out a summary of the Tribunal’s decision. In my view, it is a reasonable and accurate summary, and for convenience I adopt it for the purposes of this judgment ([11] – [6] of the applicant’s submissions – see below):

   “[11] The second Tribunal set out the first Tribunal’s findings on the applicants’ claims under the Refugees Convention as follows:

   •    That neither applicant was, in China, a Christian, that neither applicant participated in China in Christian activities, and that neither applicant was adversely treated by reason of participation in Christian activities;

   • That the applicants had engaged in religious activities in Australia not genuinely but solely to strengthen their refugee claims, and that s 91R(3) of the Act required that those activities be disregarded in determining their protection claims;

   •    That neither applicant faced a real chance of persecution in China for failing to return to China at the end of their tour group visit when their visas expired. 

   [12] The Tribunal found that the applicants ‘did not provide any further claims or evidence in relation to their alleged fear of harm’ at the hearing before it. It also found that nothing said at the second Tribunal hearing caused it to revise the first Tribunal’s findings: RD 229 at [20]. Accordingly, it accepted and adopted the findings of the first Tribunal and found that the applicants’ claims to fear Convention-related persecution were not well-founded: RD 229 at [21].

   [6] The second Tribunal then considered s 36(2)(aa) of the Act, referring to the ‘real risk’ standard set out in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505: RD 229 at [23]. Given that it rejected that the applicants were Christians in China, it was not satisfied that the applicants’ claims gave rise to substantial grounds for believing that there was a real risk they would suffer significant harm: RD 229 at [25]. The Tribunal also found that the applicants would not face a real chance of persecution for failing to return to China at the end of their tour group visit after their visas had expired.”

   [Note: errors in paragraph numbers in the original].

The Application

1. The application to the Court sets out the grounds of review. They are as follows:

   “1. Fail to provide a competent interpreter during the hearing

   2. The second respondent did not give [the] applicants reasonable time to provide relevant material and documentation to support their claims.

   3. The second respondent took only the hearing outcome with the applicants into account rather than all the relevant consideration in making determination.”

2. Both applicants appeared in person at the first Court date and were assisted by an interpreter in the Mandarin language. Given the claims, particularly in ground one, the applicants were put on notice by the Court that they would need to provide evidence to support any claim of inadequate interpretation at the Tribunal hearing. They were asked to consider consulting a lawyer particularly for that purpose. The matter was set down for final hearing on 10 November 2014.

Before the Court

1. At the final hearing the applicants appeared in person. They were assisted by an interpreter in the Mandarin language. Nothing further has been filed by the applicants.

2. The applicants sought leave to tender documents to the Court. It appeared these documents were a copy of the Australian government’s “Strategic Plan” for the future of the Refugee and Migration Review Tribunals, and a list of internet sites which the applicants wanted the Court to access to obtain information about Christians in China.

3. The first document was plainly not relevant to an issue before the Court. Leave to provide the document to the Court was refused. As to the second, this was simply a list of internet sites (both in English and what appeared to be Mandarin characters). The applicants explained this list was compiled with the assistance of a “friend” after the making of the Tribunal’s decision. This document also was not relevant to an issue in these proceedings. The Court cannot substitute its findings of fact for those of the Tribunal (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). Leave to provide the document was also refused.

4. The applicants made submissions in relation to each of their grounds. These are addressed below.

Consideration

1. Ground one asserts that the Tribunal did not provide a “competent interpreter” at the hearing. No particulars are provided. Before the Court the applicants at first stated that a “friend” listened to the recording of the hearing with the Tribunal and “assisted” them in “identifying” mistakes made by the interpreter.

2. However, the applicants later explained that the friend did not in fact listen to any recording. Rather, the friend read the Tribunal’s decision record and formed the view that mistakes in interpretation must have been made because the friend knew of their “situation” and that they had attended church activities in Australia. That is, that the applicants understood from their “friend” that the Tribunal’s adverse conclusions must have been arrived at because of errors in interpretation of the evidence the applicants gave.

3. As the Minister submits, the question of the inadequacy of interpretation at a Tribunal hearing such as to find jurisdictional error requires demonstration that the interpretation was so incompetent that the applicants were prevented from giving their evidence on critical matters (Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [38] and [45]). I note that recently, further relevant direction on matters of interpretation at Tribunal hearings was provided by the Full Federal Court in SZRMQ v Minister for Immigration and Border Protection & Anor [2013] FCAFC 142 (see in particular per Allsop CJ at [22], and per Robertson J at [66]). It is not necessary, however, to consider these authorities in detail.

4. Despite opportunity to do so, the applicants have not provided any evidence to the Court to support their contention that, in effect, the level of interpretation at the hearing was not competent, and as such they were denied the opportunity to give their evidence on critical matters of substance, significance, or potential significance.

5. There is nothing in the Tribunal’s references to the hearing in its decision record to indicate any difficulties with the interpreter or on the level of interpretation at the hearing. Nor did the applicants say anything to the Court today that would justify any further inquiry of this issue before the Court in the interests of justice. Disagreement by the applicants’ friend with conclusions made by the Tribunal, is not a basis on which to assert errors in interpretation at the Tribunal hearing. Ground one is not made out.

6. Ground two asserts that the Tribunal did not give the applicants reasonable time to provide relevant materials and documents in support of their claim. The ground is not particularised.

7. Before the Court, the applicants stated that they had provided documents to the Tribunal, but that the Tribunal still found adversely to them. They further stated that they had had difficulty in obtaining further corroborative documents from China. However, they submitted that the lack of corroborative documents did not necessarily mean that they would not be in danger if they were to return “to China”. Finally, they also complained that the Tribunal did not have sufficient evidence to support its findings.

8. The evidence before the Court reveals that in addition to a number of written statements, the applicants provided a number of documents and material, in support of their application, both to the delegate and to the Tribunal as earlier constituted. (CB 36 to CB 45, CB 67 to CB 79, CB 121 to CB 129, CB 137 to CB 138).

9. The Tribunal wrote to the applicants on 25 September 2012 informing them that their case had been remitted to the Tribunal for reconsideration (CB 195 to CB 207). That letter attached information for the applicants which included (CB 205):

   “What happens after I lodge my application for review?

   The tribunal will send a letter confirming that it has your application and inviting you to send any documents, information or other evidence you want the tribunal to consider.”

10. The invitation to the hearing dated 14 February 2013 also contained the following (CB 208):

    “Please read and complete the enclosed ‘Response to hearing invitation’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish the tribunal to consider. Any documents or written argument sent to the Tribunal should be in English or be translated by a qualified translator.”

11. As set out above, the applicants have not provided any evidence as to what occurred at the Tribunal hearing. The Tribunal’s references to the hearing in its decision record reveal that no other evidence, beyond the oral testimony provided by the applicants at the hearing, was submitted to the Tribunal ([10] ‑ [17] at CB 227 to CB 228). In particular, the Tribunal records ([13] at CB 228):

    “I asked the applicants whether they had any other material or documentation which they wished to submit. The first applicant responded that they did not, and that the previous Tribunal had said that documents can be bought and this is why she did not provide her marriage certificate.”

12. First, the Tribunal’s decision did not turn on whether the applicants were married. Second, there is nothing here to suggest that the applicants had any other documents or materials they wanted to submit and were prevented from doing so by the Tribunal, as constituted for current purposes. Third, as the Minister submits, the applicants had over six months from the hearing (2 April 2013) to the decision (8 November 2013) to have submitted any other documents or materials.

13. The complaint as expressed in ground two, that they were not given reasonable time, is not made out. Nor is there anything before the Court to say that they asked for more time and that the Tribunal unreasonably refused any such request (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280. On the evidence the Tribunal asked if they had further documents to submit and the answer was “no”.

14. The applicants’ complaint made in oral submissions before the Court, that the Tribunal did not have evidence to support its findings, is not supported by the material before the Court. The Tribunal relied on the material before it, the applicants’ oral and documentary evidence, and country information. The Tribunal’s findings were reasonably open to it on the evidence before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405).

15. The Tribunal is not required to “prove” its case, or even to “disprove” the applicants’ case. Rather, the test for the Tribunal is whether on the evidence and materials before it can reach the requisite level of satisfaction such that the visa must be granted (ss.65 and 36(2) of the Act and SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). In the current case the Tribunal could not reach that requisite level of satisfaction on what had been put before it. In all, ground two is not made out.

16. Ground three asserts that the Tribunal relied on the hearing with the applicants for its decision, rather than taking into account all the “relevant consideration”.

17. I agree with the Minister that ground three requires further explanation to be to properly understood. The applicants did not provide any such satisfactory explanation. At best the complaint could be understood as being that the Tribunal did not act impartially because it relied on the findings of the earlier constituted Tribunal.

18. If the complaint is indeed that the Tribunal improperly relied on the decision of the earlier constituted Tribunal then, even in that circumstance, no jurisdictional error is revealed. The Tribunal did make reference to what had occurred before the earlier constituted Tribunal. It accepted and adopted findings made by the earlier constituted Tribunal. I note that the earlier constituted Tribunal had not considered the criterion of complementary protection. This is explained by the fact that the relevant provision (s.36(2)(aa) of the Act) did not come into force until after the earlier constituted Tribunal made its decision. The Tribunal gave separate consideration to complementary protection.

19. In relation to the earlier findings, the Tribunal did invite the applicants to another hearing (SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 (“SZHKA”)). It discussed with the applicants the issues determinative of review. It put the applicants on notice that it would rely on the “earlier” Tribunal’s decision. It specifically invited the applicants to comment on this “earlier” record and, in particular, why the “earlier” Tribunal did not accept that they were Christians in China ([10] – [11] at CB 227).

20. On what is before the Court I agree with the Minister that it cannot be said that the Tribunal simply regarded its task as being “to repeat the views and conclusions of the member responsible for the earlier Tribunal decision” (SZHKA at [8] and see further [8] ‑ [9] and [20] of the Tribunal’s decision).

21. There is no jurisdictional error simply by using material from an earlier Tribunal decision. In the current case it is tolerably clear that the Tribunal made its own findings in relation to all of the evidence before it (Minister for Immigration and Citizenship v WZANC [2010] FCA 1391; (2010) 119 ALD 275). While the Tribunal agreed with the earlier findings, it did so in circumstances where it separately turned its mind to the claims and evidence (although see further below).

22. During oral submissions before the Court the applicants sought to challenge various factual findings made by the Tribunal. One of the concerns stated by the applicants was that the Tribunal found that they did not participate in church activities in Australia.

1. In reply, the Minister submitted that the Tribunal, and the earlier constituted Tribunal, made no such finding (noting that the Tribunal said it relied on those earlier findings). Both Tribunal members accepted that the applicants had participated in church activities in Australia.

2. As set out above, the earlier constituted Tribunal was concerned only with the criterion now at s.36(2)(a) of the Act. That is whether the applicants met the definition of “refugee” as it appears in the Refugees Convention and, given the relevance of “persecution” to that definition, s.91R of the Act.

3. The earlier constituted Tribunal found that the applicants engaged in the church activities in Australia for the sole purpose of bolstering their refugee claims. It therefore disregarded this conduct pursuant to s.91R(3) of the Act.

4. At the hearing I asked the Minister to address how the Tribunal (that is the Tribunal whose decision is currently before this Court) considered the matter of the applicants’ church activities in Australia in the context of the criterion at s.36(2)(aa) of the Act (complementary protection).

5. Relevant to this consideration are the following paragraphs in the Tribunal’s decision record under the heading of “Complementary protection criterion – findings” ([22] – [25] at CB 229):

   “[22] I have proceeded to consider the application of s.36(2)(aa) to the applicants’ circumstances.

   [23] I note the explanation of the ‘risk threshold’ in the Complementary Protection Guidelines. However, in considering s.36(2)(aa), I have proceeded on the basis that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable in the context of assessment of the Refugee Convention definition, following the decision of the Full Court of the Federal Court in MIAC v SZQRB[2013] FCAFC 33.

   [24] As set out above, I accept and adopt the findings made by the previous Tribunal: that applicants’ claims to have been Christians in China and to have been adversely treated because of that were fabricated and not genuine and that therefore neither applicant had a fear of harm for that reason; that the applicants had engaged in religious activities in Australia not genuinely but solely in order to strengthen their refugee claims, and s.91R(3) of the Act required that those activities be disregarded in determining their protection claims; and that neither applicant faced a real chance of persecution in China for failing to return to China at the end of their tour group visit and when their visas expired.

   [25] On the basis of those findings, and in the absence of any further information or evidence at the hearing before me which could cause me to review those findings advantageously to the applicants, I am not satisfied that the applicants’ claims give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to China, there is a real risk that either would suffer significant harm.”

6. The immediate question is whether the Tribunal properly distinguished between the two separate criteria at s.36(2)(a) and s.36(2)(aa) of the Act. That is, did it import into the consideration of the complementary protection criterion any concept relevant to refugee protection and not complementary protection. In short, did it use s.91R(3) of the Act (relevant only to Refugees Convention consideration) to find that the applicants did not satisfy the complementary protection criterion (see SZRQR v Minister for Immigration & Anor [2013] FMCA 21 at [13] and SZRSA v Minister for Immigration & Anor [2012] FMCA 1187 at [38]).

7. In SZSFK v Minister for Immigration and Border Protection & Anor [2013] FCCA 7 (“SZSFK”) Judge Driver found legal error in a matter involving a protection visa applicant, in circumstances where the claim for complementary protection was rejected because the Tribunal, in that case, relied on earlier findings involving the separate Refugee Convention protection criterion and “made no attempt to distinguish the different ‘tests’ posed by s.36(2)(a) and s.36(2)(aa)” (SZSFK at [90]).

8. His Honour concluded (SZSFK at [97]):

   “On balance, I prefer the submissions of the applicant on this ground. It was open to the Reviewer to deal with the complementary protection criterion in a self contained way in part of his report. He chose, at [72] to emphasise what he saw as the ‘non systematic or targeted’ threat to the applicant. This could have been a reference to s.91R(1)(c) of the Migration Act (which the parties agree is not relevant to the complementary protection criterion) or it could have been a general reference intended to quantify the risk. The use of the word ‘systematic’ is problematic. Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not. The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error. Further, the reliance by the Reviewer at [75] on unspecified ‘findings set out above’ is particularly problematic. On its face, it appears to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion (such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant).”

9. The approach taken in SZSFK is not binding on this Court. Nevertheless, I would follow it because in my respectful view it is correct to note the distinction between the two criteria for a protection visa at s.36(2) of the Act, and the different elements, or “tests”, relevant to each in the consideration as to whether the applicant meets the Refugees Convention criterion, and if not, whether he or she meets the complementary protection criterion. The failure to distinguish between the two sets of different elements, or to use some elements relevant to one and not relevant to the other, in the consideration of the latter, is jurisdictional error.

10. There are some differences in the factual context between SZSFK and the current circumstances. In SZSFK the Tribunal relied on findings expressed earlier in its own decision record. Here, the Tribunal relied on findings made by the earlier constituted Tribunal. As set out above, there is no legal error, of itself, in the Tribunal doing that, in circumstances where it gives reasons for doing so. However, this is not a difference that has any material effect on the issue under consideration. That issue is, whether the Tribunal failed to distinguish between the different elements in the respective criteria.

11. In SZSFK, what the Court found “problematic” was the use of certain language relevant to the refugee criterion while considering the complementary protection criterion. In the current case, the Tribunal’s relevant language is, in my view, far more “problematic” than that in SZSFK. As set out above (at [41]) the Tribunal made specific reference in its complementary protection consideration to s.91R(3). This section has no application, or relevance, to the complementary protection criterion (SZSXH v Minister for Immigration and Border Protection [2014] FCA 914 at [21]).

12. Before the Court the Minister submitted that the Tribunal’s consideration of the issue of the applicants’ claimed Christian activities in Australia, as against the complementary protection criterion, was “not one of clarity” given that the Tribunal referred to s.91R(3) of the Act in that consideration.

13. However, the Minister argued that no legal error is revealed because the applicants made no claim before the Tribunal that they feared harm in China for reason of their Christian activities in Australia. Rather, that the applicants’ claim was that their Christian activities in Australia demonstrated that they were genuine Christians and would suffer harm on return to China because of this reason.

14. The Minister submitted that in this context what the Tribunal was seeking to convey (at [24] of CB 229 and see [41] above) was that, by virtue of the finding (which it had adopted) that they were not genuine Christians, (and that the applicants had only engaged in Christian activities in Australia so as to bolster their claims to protection), the Tribunal was only seeking to apply the finding that they were not genuine Christians to the complementary protection consideration and not the finding as to disregarding the Christian conduct in Australia.

15. It is the case that the Tribunal’s decision must be read fairly and “…[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error…” (Wu Shan Liang at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ).

16. While a fair reading may excuse or explain the use of infelicitous language, it cannot assist the Minister before the Court to resolve any ambiguity in the Tribunal’s reasoning (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9).

17. In my view, in the current case, the Tribunal’s language cannot be said to be ambiguous. A fair reading of [24] (at CB 229), which must be read contextually with [25] (at CB 229), is as follows. The Tribunal adopted the findings, made by the earlier constituted Tribunal, that the applicants’ claims to have been Christians in China, and to have been adversely treated for that reason, to be fabricated and not genuine. However, it also said it adopted the earlier finding that they had engaged in religious conduct in Australia to “strengthen their refugee claims” ([24] at CB 229).

18. It then said it adopted the earlier finding that s.91R(3) of the Act required those activities to be “disregarded” in determining their protection claims. The Tribunal had also adopted the finding that “neither applicant faced a real chance of persecution” for failing to return to China at the end of their tour group visit to Australia [18] (at CB 228 to CB 229). The Minister says that the latter was the only claim expressly made by the applicants which was relevant to the complementary protection criterion.

19. The difficulty for the Minister is that, even putting to one side the tour group matter, in the very next paragraph the Tribunal rejected the contention that the applicants would face “significant” (complementary protection) harm in China “[o]n the basis of those findings” ([25] at CB 229). That is, plainly, on the basis of the findings referred to in [24] (at CB 229).

20. The Tribunal therefore found, amongst other things, that in relation to the complementary protection criterion, the finding that s.91R(3) of the Act required the conduct in Australia to be disregarded was a finding which, amongst other findings, formed the basis of its conclusion as to the complementary protection criterion. This is revelatory of legal error for the reasons set out above.

21. I do not agree with the Minister’s subsequent submission that even if the Tribunal did have regard to s.91R(3) of the Act in the consideration of the complementary protection criterion, this would not amount to jurisdictional error because it was not a “material error”. This is said to be because the applicants made no claim to fear harm in China because of their Christian activities in Australia.

22. The argument appears to be that it is reasonable to infer that the Tribunal accepted that they engaged in this conduct in Australia. That inference arises with the reference to s.91R(3) of the Act. As set out above, the Minister referred generally to the applicants’ statements and submissions before the delegate and the Tribunal to argue that no claim was advanced to fear harm in China for reason of Christian activity. Rather, the reference to this activity was put for the purpose of supporting the claim to be Christians, rather than being a basis, in essence, to fear harm.

23. Even if I were to proceed on the basis that the Minister is correct in the distinction he seeks to make, noting that I have not made any finding accepting it, this still does not assist the Minister.

24. Even if the applicants made no express claim to fear harm for reason of their activities in Australia, what remains is that the Tribunal itself saw the matter of that activity as being relevant to its consideration of the complementary protection criterion. That arises from the very language used, and referenced, by the Tribunal at [24] and [25] (at CB 229).

25. If the applicants made no such claim, as the Minister now submits, then it begs the question as to why the Tribunal felt the need to make reference to it in its otherwise brief consideration of the complementary protection criterion. Even if it can be said that the Tribunal acted in this regard in an abundance of caution, what still remains is that it adopted the findings relevant to s.91R(3) of the Act and used them as a part of the basis for its consideration of complementary protection.

Conclusion

1. Jurisdictional error is revealed in these circumstances. There is no reason to refuse the relief the applicants seek. I will make the appropriate orders.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 5 December 2014