SZSSG and Ors v Minister for Immigration and Anor (No.2)
[2020] FCCA 124
•31 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSSG & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 124 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of Refugee Review Tribunal (Tribunal) affirming decision not to grant the applicants a Protection visa – whether the findings of fact on which the Tribunal relied for affirming decision not to grant a Protection visa were arrived at unreasonably or illogically – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476 |
| Cases cited: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 |
| First Applicant: | SZSSG |
| Second Applicant: | SZSSH |
| Third Applicant: | SZSSI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 629 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 8 February 2019 |
| Date of Last Submission: | 8 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr S Tully |
| Counsel for the First Respondent: | Mr H Bevan |
| Solicitors for the First Respondent: | Minter Ellison Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 629 of 2013
| SZSSG |
First Applicant
| SZSSH |
Second Applicant
| SZSSI |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants apply for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Refugee Review Tribunal (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (protection visa).
The applicants are citizens of the People’s Republic of China. The first and second applicants are de facto partners, and the third applicant is their child. Only the first applicant (applicant) made a claim for protection. The second and third applicants applied as members of the applicant’s family unit. As will become apparent, however, the Tribunal considered that all three applicants made claims for protection.
Claims for protection
The applicant first stated her claims for protection in a statutory declaration made on 20 December 2012 which formed part of the Protection visa application.[1] The applicant claimed as follows:
[1] CB42-47
a)The applicant was born in 1989. In September 2005 she enrolled in a school. She boarded there from Sundays to Thursdays. On a Friday afternoon in 2005, while travelling to her home, the applicant was followed by some hooligans. The applicant became scared and ran into one of the applicant’s class mates, Mr JL. Mr JL gave the applicant strong support, and escorted the applicant home. The applicant and Mr JL became good friends.
b)One Sunday evening Mr JL persuaded the applicant to go to his home before she went to school. She there met about ten young people. It was a Christmas party organised by Mr JL’s mother. The applicant was the only person there who was not a Catholic. The applicant was immediately attracted by the atmosphere of the party. When she listened to the hymn sung by Mr JL the applicant “could feel that Almighty Lord was really” with the applicant at that moment. The applicant learned at the party that Mr JL had been brought up by his mother as a devout Catholic in the Roman Catholic underground church.
c)From January to February 2006 Mr JL’s mother arranged the applicant to attend a “2-month Catechumen class” organised by the underground church. The applicant was baptised in March 2006. After she was baptised, the applicant always followed Mr JL to attend secret meetings of the underground church during the weekend when she returned home from school.
d)In April 2006 the police took the applicant and Mr JL to the Public Security Bureau (PSB). They were interrogated separately. The police told the applicant Mr JL’s mother had already been arrested because she had been found to spread illegal religious beliefs to young people and organise illegal religious activities against students. They suspected the applicant might also have been involved in illegal religious activities or that, at the very least, she was aware of the illegal activities of Mr JL and his mother. The police threatened they would send the applicant to jail if she failed to follow their instructions. The applicant told the police Mr JL was her good friend, but said she did not know about his or his mother’s illegal religious activities. The applicant denied any involvement with the underground church. The police released the applicant in the morning. Mr JL, however, was transferred to a disciplinary centre for minors, and the applicant later learned his mother died in a female labour reform centre. Mr JL “was missing” after he was transferred to the discipline centre.
e)The applicant’s parents were unaware of the applicant’s activities in the underground church. After her detention, however, the applicant’s parents became very worried the applicant would again associate with someone like Mr JL, and also because many teachers and fellow students knew the applicant had been taken to the PSB for interrogation, which resulted in the applicant being subjected to huge pressure. The applicant’s father arranged for the applicant to study overseas.
f)The applicant arrived in Australia in December 2006 on a student visa. This was organised by a friend of the applicant’s father. The friend told the applicant’s father the applicant could support herself studying in Australia because it would be easy to find a job. The applicant, however, found that “everything was completely different” and that, although she tried her best, the applicant found it difficult to support herself so, in October 2007, she stopped studying.
g)The applicant attended a Roman Catholic Church after she arrived in Australia. In around December 2009 the applicant got to know the second applicant. He was not a Christian. Like the applicant, however, the second applicant had entered Australia to study but could not support himself, and stopped his study. The second applicant became despondent about his future. To help the second applicant, the applicant often contacted him, “evangelised to him”, and encouraged him to restore his confidence. Later they fell in love and, in May 2010, they began to live together. The third applicant was born in September 2011.
h)The applicant fears returning to China because she is a “devout Catholic of the Roman Catholic Church”. She has been actively attending the Roman Catholic Church in Australia, and she has never regarded the official Catholic Church in China as a genuine Catholic Church.
i)Since she came to Australia the applicant has “actively evangelized” to the friends around her, most of whom have come from the same province in China as the applicant. The applicant always encourages them to go to church. The applicant believes her activities in Australia have already come to the attention of authorities in China. The PSB approached the applicant’s parents at least three times asking them to warn the applicant not to poison overseas students with ““anti-China” and “anti-Communist” religious belief”.[2]
j)The applicant and second applicant had the third applicant without having their marriage registered. For that reason they will be exposed to a fine which they will be unable to afford. This will prevent the third applicant from applying for household registration (“hukou”) which, in turn, will deny the third applicant access to medical care and basic education, and “his basic human rights will be trampled down”.
[2] The applicant later claimed the visits occurred in December 2011 or January 2012 – see page 112 of the transcript of the hearing before Tribunal, being annexure “A” to affidavit of D Wu
The applicants supported their application for protection with a number of documents. These included the following:
a)A letter dated 20 May 2012 from Father M stating that the applicant “has been regularly attending The Chinese Catholic Mass” at a particular church since January 2007, and that the “date of first attendance at” that church was given to him by the applicant.[3]
b)A letter from a Ms C, a member of the Sydney Catholic Chinese Community, stating she met the applicant at a particular church on 21 January 2007, and she took the applicant and the second applicant to attend a Christmas concert on a Saturday night on 18 December 2010 at another church; and that, since then, “they attend mass and Bible study” at that church.[4]
[3] CB69
[4] CB68
Tribunal’s reasons
The Tribunal considered that each of the applicants made claims for protection.
Applicant’s claims based on religion
The Tribunal accepted the applicant participated in Roman Catholic Church activities in Australia, including attending mass and bible study, and in a range of youth group activities; the applicant arranged for the third applicant to be baptised in the Roman Catholic faith; and that the applicant demonstrated some knowledge and understanding of Catholic beliefs and practices.[5] The Tribunal, however, was not satisfied the applicant was a participant or a believer in any Roman Catholic activities in China, or that she engaged or continues to engage in conduct in Australia in connection with the Roman Catholic Church as an expression of genuine faith, or that she had engaged in such conduct otherwise than to strengthen her refugee claims.[6] The Tribunal relied on the following matters:
a)The Tribunal found unconvincing the applicant’s account of how she was first introduced to Christianity. Here the Tribunal referred to two matters. First, the applicant claimed she had a very close relationship with Mr JL for three months, at whose home she claimed to have spent significant time, without Mr JL informing her of his faith; but Mr JL chose to inform the applicant of his faith, as well as that of his mother and ten other attendees and believers, during a Christmas gathering at which the applicant was the only non-believer.[7] Second, although the applicant claimed that at that gathering she became “immediately attracted” by the atmosphere, “deeply moved”, and that she “could feel that Almighty Lord was really with me at that moment”, she was unable to explain to the Tribunal what moved her or motivated her to participate in a religious practice considered illegal in China, other than to say that her friend’s singing made her feel happy and peaceful.[8]
b)The Tribunal found the following “factors”, considered “cumulatively”, as casting doubt on the truth of the applicant’s claims to have become involved in unregistered Catholic activities in China before she left China: in her written claims the applicant claimed she experienced huge pressure in the school and could not study normally, but before the Tribunal she claimed she only experienced indifference by the teachers and students; the applicant claimed she continued to attend the illegal gatherings despite her frightening arrest, and her parents not approving of her attending registered gatherings; and the applicant was able to leave China legally eight months after her claimed detention on a passport that had been issued less than two months after her claimed detention.[9]
c)The applicant did not apply for protection for some five years after she entered Australia; and she had made no enquiries about how Australia could protect the applicant, particularly after it became apparent from the time she failed to pass her course in October 2007 that any pathways to Australian permanent residency via her studies was unlikely to eventuate, and her student visa ceased in March 2009; and also despite the applicant’s brother having arrived in Australia in around 2008 and seeking protection.[10]
d)The Tribunal was concerned with the evidence the applicant and the second applicant gave in response to the Tribunal’s question about how they reconciled their claim to hold the Catholic faith with the applicant and second applicant having moved in together and having a child out of wedlock. The applicant and the second applicant said they slept in different rooms, but they had given differing accounts to a previously constituted Tribunal about how much rent they paid, and whether they paid extra rent for the second applicant to sleep in the common area of the house shared with other housemates.[11]
e)The Tribunal did not accept the applicant’s evidence that the PSB had visited her mother three times between December 2011 and February 2012. The Tribunal principally relied on the applicant’s not having referred to those claimed visits as an explanation for her deciding at around that time to apply for protection.[12]
[5] CB238, [128]
[6] CB240, [136]
[7] CB238-239, [131]
[8] CB239, [132]
[9] CB239, [133]
[10] CB239-240, [134]
[11] CB240, [135]
[12] CB241, [137]
Relevant to one aspect of the applicants’ claims in this Court is the Tribunal’s treatment of the evidence Father M and Ms C, the authors of the letters to which I have already referred, provided to the Tribunal. The Tribunal set out in its reasons for decision the oral evidence each of these witnesses gave.[13] The Tribunal did not consider Father M’s evidence to be independent or reliable because Father M’s evidence that the applicant had been attending church since 2007 was based on what the applicant had told him.[14] The Tribunal found Ms C’s evidence unreliable in significant respects. The Tribunal referred to Ms C’s initially stating she had not paid too much attention to the second applicant’s attendance at church and was unsure of the frequency of his attendance, but “only moments later” stating that she thinks she had seen the second applicant attend church with the applicant every Saturday since December 2010.[15]
[13] CB226-227, [75]-[79]
[14] CB238, [129]
[15] CB238, [129]
Second applicant’s claims based on religion
Although the Tribunal accepted the second applicant had participated in Roman Catholic Church activities, and that he was baptised, the Tribunal was not satisfied his participation reflected any genuine Catholic faith, or that the second applicant has any desire or intention to practise the Catholic faith in China in the reasonably foreseeable future.[16] The Tribunal relied on the following matters:
a)The applicant remained in Australia after he ceased study in November 2007, but the only reason he gave for not returning to China was the claim that his parents had incurred a large debt to finance the second applicant’s studies in Australia, and he needed to work to help them pay for it; and when the Tribunal asked the second applicant whether he had any fears about returning to China, he said he was concerned about paying back his father’s debt.[17]
b)The second applicant demonstrated difficulty in elaborating why he decided to be baptised, and the account he gave appeared “rehearsed and unconvincing and based on practical imperatives (ie, that the first and third applicant had become baptized [sic] so he thought he should) rather than any genuine Catholic faith”.[18]
[16] CB242, [142]
[17] CB241, [138]
[18] CB241-242, [140]
Third applicant’s claims based on religion
The Tribunal accepted the third applicant was baptised in the Roman Catholic faith, but found the applicant was too young to form his own motivation or purpose in becoming baptised. The Tribunal was not satisfied that the third applicant, an infant aged 17 months, had any particular religious convictions that he desires to express or will express in the reasonably foreseeable future in China.[19]
[19] CB242, [144]
Claims based on family planning laws
The Tribunal accepted the third applicant was born to the applicant and second applicant at a time when they were not married, and also when they were below the marriageable age under Chinese law; and that each of the applicant and second applicant will be liable to pay a “social compensation fee” under Chinese law. The Tribunal, however, was not satisfied the applicant and second applicant would be unable to pay the social compensation fee.[20] The Tribunal relied on its findings that each of the applicant and the second applicant came from a family that was willing and financially able to pay the extensive costs associated with their student visas and international student fees; the applicant and second applicant demonstrated an ability to source work in Australia at various times, despite their demonstrated English language difficulties; the applicant and second applicant maintain frequent contact with their parents who know of their grandson; and, although it accepted the applicant’s parents are not happy because they wanted her to have a richer partner, the Tribunal considered the applicant and second applicant would have the benefit of family support in China.[21]
[20] CB244, [149]
[21] CB243-244, [148]
Ultimate conclusions
Given the findings the Tribunal made, it was not satisfied any of the applicants satisfied the criteria for the grant of a protection visa, either under s.36(2)(a) or s.36(2)(aa) of the Act.
Grounds of application
The applicants rely on the following ground stated in the further amended application filed on 21 December 2018:
The tribunal failed to properly exercise its power of review under s 414(1) of the Migration Act 1958 (Cth) (the Act)
Particulars
(i)In its reasons for decision, the tribunal found that:
a.the evidence of two witnesses was unreliable (at [129]) because it was based on a conversation with the first applicant and a contrasting recollection given “only moments later”;
b.the first applicant’s account was unconvincing because she could not explain another person’s behaviour (at [131]) or meet an unspecified standard (at [132]);
c.the first applicant was not of adverse interest to the authorities prior to departing China because she did so [sic] (at [133]);
d.the first applicant’s prior experiences in China were doubtworthy [sic] because she would have taken certain steps given her immigration status in Australia (at [134]);
e.the first and second applicants’ domestic arrangements in Australia was an attempt to overcome the delegate’s concerns and, “in the context of all the evidence”, affected their reliability “more generally” (at [135]);
f.events did not occur because the first applicant had mentioned them to the first respondent but not to the second respondent (at [137]);
g.evidentiary omissions by the second applicant supported positive adverse conclusions (at [138]);
h.the second applicant’s account was “rehearsed and unconvincing” because he had difficulty providing elaboration and was based on “practical imperatives” (at [140]);
i.the third applicant’s religious convictions and profile were entirely imputed from his parents (at [144]);
j.a conclusion could be made because the applicants did not provide “any argument against” what the evidence suggested (at [146]);
k.the application of China’s family planning laws to the third applicant depended only on two factual findings and the consequences of one factual finding (at [147]);
l.the applicants’ difficulties in meeting costs using debt in China would not be “any more significant” than meeting costs using [sic] debt in Australia (at [148]);
m.the applicants’ indebtedness in Australia will be replicated in China so that the social compensation fee would be paid (at [149]);
n.all of and only these preceding findings informed the tribunal’s “cumulative” consideration (at [136], [142], [150], [151], [153]); and
o.these preceding findings formed the exclusive basis for the findings of fact required by s 36(2)(aa) of the Act (at [154]).
(ii)The tribunal’s fact finding was legally unreasonable.
Parties’ submissions
It is clear from the ground stated in the further amended application that the applicants claim the Tribunal made findings to the effect set out in paragraphs (i)(a)-(m) of the particulars (Findings); that each Finding was not reasonably made; the Tribunal relied on each Finding on a cumulative basis in not accepting the credibility of the applicants’ claims; and the Tribunal made a jurisdictional error by relying on any one or more of the Findings to conclude it did not accept the applicants’ claims.
In his written submissions counsel for the applicants accepted that evidence before an administrative decision-maker can “give rise to different processes of reasoning”, and that “if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”.[22] Counsel also accepted that, to succeed, the applicants “must establish that there was no logically probative material before the tribunal upon which its findings of fact or conclusions could properly be based”.[23] Counsel submitted, however, that the Tribunal’s findings of fact “were not open to it at all” or, alternatively, “the process of fact finding employed by the tribunal was legally unreasonable”.[24] Counsel further submitted that, to succeed, the applicants “do not have to go so far as to establish that the tribunal made a finding of fact that was so unreasonable that no reasonable decision-maker could have made it”.[25]
[22] Applicants’ Outline of Submissions, [13] quoting from the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, at [131]
[23] Applicants’ Outline of Submissions, [16]
[24] Applicants’ Outline of Submissions, [14] (emphasis in original)
[25] Applicants’ Outline of Submissions, [25]
In his oral address counsel for the applicants repeated the substance of the submissions contained in his written submissions. Counsel also submitted that the question whether any one of the Findings was reasonably open to the Tribunal is to be assessed having regard to the material the Tribunal actually considered, and to the actual reasoning on which the Tribunal relied in making that Finding.
In his written submissions counsel for the Minister relied on the following passage from the judgment of the Full Federal Court in Singh v Minister for Home Affairs:[26]
The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it:
(1)is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);
(2)“lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);
(3)is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).
[26] [2019] FCAFC 3, at [61] (Reeves, O’Callaghan, and Thawley JJ)
Counsel for the Minister also relied on the principles set out in the following passage from the judgment of the Full Federal Court in Singh:[27]
For jurisdictional error to be established on the ground the decision was irrational, it must be a decision to which no rational or logical decision-maker could have arrived on the same evidence; the ground cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ).
[27] [2019] FCAFC 3, at [57] (Reeves, O’Callaghan, and Thawley JJ)
Counsel for the Minister submitted that all of the Findings were reasonably open to the Tribunal to make.
Issues and approach
The principal question that arises is whether it was reasonably open to the Tribunal to make any one of the Findings, given the material and reasoning on which the Tribunal relied in making the Findings. This is not, as counsel for the applicants submits, a different question from whether any of the Findings were findings no reasonable decision-maker in the position of the Tribunal could have made, given the evidence and reasons on which the Tribunal relied for making such Findings. If it were found that it was not reasonably open to the Tribunal to make any one of the Findings, given the evidence and reasons on which it relied to make that Finding, it would necessarily follow that the Finding was one that no reasonable decision-maker in the position of the Tribunal could have made, given the evidence and reasons on which the Tribunal relied to make that Finding.
I propose to consider by reference to each Finding the grounds on which the applicants submit it was not reasonably open to the Tribunal to make such a finding.
Findings identified in paragraph (i)(a) of particulars
This paragraph of the particulars is directed to the Findings the Tribunal made in relation to the evidence of Father M (Father M’s evidence was not independent or reliable because Father M’s evidence that the applicant had been attending church since 2007 was based on what the applicant had told him) and Ms C’s evidence (her evidence was unreliable). I will consider separately the applicants’ submissions in relation to these Findings.
The applicants accept there was some evidentiary support for the Finding in relation to Father M.[28] They submit, however, that the Finding was “inconsistent with other evidence”,[29] that evidence being the evidence Father M gave at the hearing before the Tribunal, which was that he regularly saw the applicant at the congregation, and he was as familiar with her as he was with others who attended mass.[30] The applicants submit “the weight of all the evidence was against” the Finding; the Tribunal failed “to explain why other evidence was not preferred”, and the Tribunal undertook “no balancing exercise” in relation to other evidence.[31] The applicants also submit that the Finding in relation to Father M “assumes the content of a conversation”, and that it implies a finding that the applicant was deceitful.[32]
[28] Asserted Bases for Legally Unreasonable Fact-finding (MFI1), second row
[29] Asserted Bases for Legally Unreasonable Fact-finding (MFI1), second row
[30] Applicants’ Outline of Submissions, [27]; CB228-229, [75]
[31] Asserted Bases for Legally Unreasonable Fact-finding (MFI1), second row
[32] Applicants’ Outline of Submissions, [27]
There are a number of matters to note about these submissions. First, the applicants do not identify all of the evidence Father M gave at the hearing which the Tribunal set out in its reasons, including the following:[33]
When asked how she specifically came to his [that is, Father M’s] attention given the very large number of people who must attend his services, he responded that he can identify people new to the congregation. However, he is not sure, due to the size of the congregation, how long she has been attending and he relied on what she has told him regarding when she started attending. She says it was in 2007. When asked what he has personally witnessed of her church participation he responded that she seems to be at home with Catholic practice. By contrast, the body language of those who are not comfortable with Catholic practice is identifiable.
[33] CB226, [75]
The applicants do not submit the Tribunal’s summary of the evidence Father M gave before it was inaccurate or incomplete.[34]
[34] A transcript of the hearing before the Tribunal is annexed to the affidavit of D Wu.
Second, the Tribunal’s finding in relation to Father M cannot reasonably be considered as having been based on an implied finding of a deceitful conversation between the applicant and Father M. The Finding was that the evidence Father M gave was not reliable because it was not independent; and it was not independent because it was based on what the applicant had told him.
Given the evidence Father M gave, both in the letter he submitted in support of the applicants’ claims,[35] and before the Tribunal, I do not accept it was not reasonably open to the Tribunal to find Father M’s evidence was not reliable. On the contrary, I am satisfied it was reasonably open to the Tribunal to so find.
[35] CB69: “The date of first attendance . . . was given to me by” the applicant
The applicants submit the Finding in relation to Ms C was unreasonable because it was based on the implicit assumption that her evidence ought to have been presented “in a constant and unchangeable manner”.[36] It is true that the rejection of a witness’s evidence because it has changed and varied in a short period is premised on the generalisation that evidence given in such circumstances is or may not be reliable. That, however, is different to a generalisation that evidence is reliable only if it is given in “a constant and unchangeable manner”. The Tribunal did not rely on any such generalisation; and the generalisation on which it did rely was one on which it was reasonably open to it to rely.[37]
[36] Applicants’ Outline of Submissions, [28]
[37] I considered the role of generalisations in fact-finding in Tran v Minister for Immigration & Anor [2019] FCCA 2859, at [23]-[31]
The applicants also submit that “the weight of all the evidence was against” the Finding; the Tribunal failed “to explain why other evidence was not preferred”; and the Tribunal undertook “no balancing exercise” in relation to other evidence.[38] The applicants, however, do not identify the evidence they submit the Tribunal ought to have but failed to weigh, or the evidence they submit was against the Finding. I am not satisfied that, given the ground on which the Tribunal made the Finding, namely, that Ms C’s evidence changed and varied in a short period, there was other evidence the Tribunal was required to weigh. The Finding related to a particular matter – namely evidence the Tribunal found to have changed and varied over a short period. The applicants do not submit that it was not reasonably open to the Tribunal to so characterise at least part of Ms C’s evidence; and the applicants have not submitted that it was not reasonably open to the Tribunal to rely on a finding that Ms C had given changing and varying evidence as a ground for not accepting Ms C to be a reliable witness. I am not satisfied it was not reasonably open to the Tribunal to find that Ms C had given changing and varying evidence over a short period and to rely on that finding to find Ms C was not a reliable witness.
[38] Asserted Bases for Legally Unreasonable Fact-finding (MFI1), second row
There is one final matter to note, and that relates to materiality. Although the Tribunal found Father M and Ms C to be unreliable witnesses, the Tribunal accepted “that each applicant has, in their time in Australia, attended the Catholic Church and participated in a range of Catholic activities from time-to-time”.[39] Thus, even if, contrary to what I have found, the Tribunal acted unreasonably in concluding Father M and Ms C were unreliable witnesses, I would not be satisfied that this would have deprived the applicants a realistic possibility of a successful outcome and, for that reason, I would not have been satisfied the Tribunal would have made a jurisdictional error.[40]
[39] CB238, [129]
[40] BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (Yates, Wheelahan, and O’Bryan JJ) relying on Hossain v Minister for Immigration and Border Protection [2018] HCA 34, at [29] – [31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; at [45] (Bell, Gageler and Keane JJ).
The applicant’s claims fail to the extent they rely on the claim that it was not reasonably open to the Tribunal to make the Findings in relation to Father M and Ms C.
Findings identified in paragraph (i)(b) of particulars
This paragraph of the particulars is directed to the Finding that the applicant’s account of how she was introduced to Christianity was unconvincing. The paragraph relies on two matters. One is the Tribunal’s observation that the applicant could not explain why Mr JL had chosen not to inform the applicant he was a Christian until he exposed his faith at the Christmas gathering;[41] the second is the Tribunal’s observation that the applicant was unable to explain what moved or motivated her to participate in a religious practice considered illegal in China beyond her friend’s singing making her feel happy and peaceful.[42] I will deal with each of the two matters on which the Tribunal relied in turn.
[41] CB238-239, [131]
[42] CB239, [132]
The applicants submit it was irrational or unreasonable for the Tribunal to rely on the applicant’s inability to explain why Mr JL chose not to reveal his Christian faith to the applicant until the Christmas gathering because it was unreasonable to “expect the applicant to be able to explain the motivations and behaviour of another”.[43] The applicants also submit the Tribunal acted unreasonably because it did not weigh the applicant’s inability to explain Mr JL’s choosing not to reveal his faith until the Christmas gathering with evidence the applicant had given that Mr JL had told the applicant that he was the kind of person the applicant was, and whether, if he were to tell her, she would disclose it to others.[44]
[43] Applicants’ Outline of Submissions, [29]
[44] Applicants’ Outline of Submissions, [29]
The applicants’ submissions misunderstand the relevance the Tribunal attached to the applicant’s inability to explain Mr JL’s behaviour. What the Tribunal found to be unconvincing was not the applicant’s inability to explain Mr JL’s behaviour, but the applicant’s evidence that Mr JL did not manifest to the applicant his Christian faith over a period of three months before the Christmas gathering even though, the applicant claimed, over that period she had developed a close relationship with Mr JL that involved the applicant’s spending an extensive time with Mr JL at the home he shared with his mother; and why Mr JL would choose to do so in the presence of strangers in circumstances that could place those persons at risk. The Tribunal asked the applicant whether she had any explanation why Mr JL so acted, not because it was of the view the applicant knew or ought to have known why Mr JL acted as she had claimed he acted, but to give the applicant an opportunity to put forward evidence or arguments that could explain away what to the Tribunal appeared to be an unconvincing account of an important aspect of the applicants’ claims. The applicants do not submit it was not reasonably open to the Tribunal to consider the applicant’s account to be unconvincing for the reasons it gave; and I am not satisfied it was not reasonably open to the Tribunal to find that the applicant’s evidence of the holding of a Christmas gathering was unconvincing.
As for the second of the two matters on which the applicants rely, namely, the applicant’s not being able to explain what moved or motivated her to participate in a religious practice beyond her friend’s singing making her feel happy and peaceful, the applicants submit that the Tribunal “appears to unreasonably require the applicant to meet a certain level of religious faith”.[45] It is true the Tribunal can be said to have relied on a number generalisations when it observed that the applicant was unable to explain what motivated her to participate in an illegal religious practice. One is that a person who claims to have been moved in the profoundly spiritual sense in which the applicant claimed she had been moved would be able to give some account of why the person was so moved. Another generalisation is that a person is in general unlikely to be spiritually moved in the manner the applicant claimed she was moved only because she felt happy listening to her friend’s singing. It is within the common experience of human beings that music induces happiness in those who listen without effecting any spiritual transformation in the listener; but it is not within the common experience of human beings that the experience of happiness on hearing a friend sing induces a profound spiritual experience of the sort the applicant claims she experienced. Although there may well be cases where a person undergoes a profound spiritual transformation of the sort the applicant claims she underwent merely on the hearing of a friend’s singing, it was reasonably open to the Tribunal to rely on the generalisations that it did as according with “the probabilities of ordinary human experience”, and to regard the applicant’s account “ill-accorded with the probabilities of ordinary human experience as to be implausible”.[46]
[45] Applicants’ Outline of Submissions, [30]; Asserted Bases for Legally Unreasonable Fact-finding (MFI1), third row.
[46] Republic of Nauru v WET040 (No.2) [2018] HCA 60, at [35]
The applicants’ claims fail, therefore, to the extent they rely on the claim that it was not reasonably open to the Tribunal to rely on the matters on which it relied for finding that the applicant’s account of the Christmas gathering was unconvincing.
Finding identified in paragraph (i)(c) of particulars
This paragraph is directed to the Tribunal’s reliance on the applicant’s having been granted in her name a passport, and her having departed China legally. The Tribunal relied on an implied generalisation that persons who were of adverse interest to the Chinese authorities would be denied a passport or otherwise would not be permitted to leave China or their departure from China would in some way be hindered. The applicants submit it was not reasonably open to the Tribunal to rely on any such generalisations in the absence of any probative evidence; and “[h]ere there was no logically probative evidence before the tribunal that, if an individual had previously been detained, they would be denied a passport or prevented from departing China”; and there “is no evidential link between a person’s participation in unregistered Catholic activities and their ability to leave China”.[47]
[47] Applicants’ Outline of Submissions, [31]; Asserted Bases for Legally Unreasonable Fact-finding (MFI1), first row.
Counsel for the Minister submits there was evidence before the Tribunal about passport and exit arrangements in China to which, it should be inferred, the Tribunal had regard.[48] The evidence is identified, but not reproduced, in the delegate’s decision;[49] and the Tribunal said it “also has had regard to material referred to in the delegate’s decision and other material available to it from a range other sources”.[50] Counsel further submits the Tribunal in any event was entitled to rely on the knowledge of affairs in the countries from which claimants come.[51]
[48] First Respondent’s Outline of Submissions, [15]
[49] CB87, items 24 and 25
[50] CB215, [20]
[51] First Respondent’s Outline of Submissions, [15], relying on Muin v Refugee Review Tribunal [2002] HCA 30, at [263] (Hayne J)
It is not apparent from the material before me whether the items the delegate identified in his decision contained information that could reasonably support the generalisation on which the Tribunal relied. In the absence of such evidence, it is also difficult to find that the Tribunal did not refer or relate to such material. These are matters that count against the applicants, because they bear the onus of establishing that the Tribunal made a finding without any evidence or any material that could reasonably support the finding.
I prefer, however, to decide this part of the applicants’ claims on a more substantial basis; and that is that the Tribunal did not need any evidence to support the generalisation or generalisations on which it relied. Within the common stock of generalisations that people hold, at least in most modern societies, including China, are generalisations about the behaviour of law enforcement authorities in relation to persons such authorities believe or suspect have committed an illegal act (suspects). These include generalisations that law enforcement agencies would be concerned that suspects not place themselves out of the reach of the authorities by their leaving the country, and that they would give effect to such concerns by putting in place systems that would alert other government agencies that were responsible for monitoring the departure of citizens from their country when suspects take, or attempt to take, steps to depart their country, and to prevent or hinder their departure.
It is true the applicant claimed that when she had been detained she denied knowledge of and involvement in any underground church activity and she was released. The applicant also claimed, however, that, after she had left China, officers of the PSB approached her parents on at least three occasions advising her parents to warn the applicant not to poison overseas Chinese students with anti-China and anti-communist religious beliefs.[52] That indicates that, on the applicant’s account, the PSB was of the view that the applicant was perceived to be a person who participated in the underground church; and that at least one reasonable basis on which it could have been supposed, on the applicant’s account, that the PSB had formed the view the applicant was a member of or participated in underground church activities is the PSB’s having detained and interrogated her. That, in turn, indicates the PSB had records that identified the applicant as a person involved in underground church activities. Further, on the applicant’s account of the PSB’s warning to her parents, the PSB was concerned about the applicant’s overseas activities. That consideration increases the probability of the truth of the generalisations on which the Tribunal relied. That is, if the PSB were concerned about the applicant’s overseas activities, and that concern arose because of the information of which the PSB became aware when they detained and interrogated the applicant, that would have increased the probability of the PSB having alerted the relevant authorities not to issue to the applicant a passport or otherwise not permit her to leave China.
[52] CB45-46, [11]
The Tribunal, therefore, did not act illogically or unreasonably in relying on a generalisation to the effect that, if the applicant’s claims were true, she would not have been granted a visa, and she would not have been permitted to leave China, or to leave China without hindrance. The applicants’ claims fail, therefore, to the extent they rely on the claim that it was not reasonably open to the Tribunal to rely on such generalisation in the absence of any evidence.
Finding identified in paragraph (i)(d) of particulars
This paragraph is directed to the Tribunal’s reliance on the applicant’s delay in applying for protection after she entered Australia. The applicants submit the Tribunal acted unreasonably, first, because there was “no probative evidence before the tribunal that, when pathways to permanent residency appear to cease, an individual will seek Australia’s protection”; and, second, because the Tribunal ignored evidence which was against the Tribunal relying on the applicant’s delay or, to the extent it did not ignore such evidence, the Tribunal did not explain why it did not accept that evidence.[53] Counsel for the Minister, on the other hand, submits that a Tribunal does not manifest unreasonableness or irrationality by considering and relying on an applicant’s delay in applying for a protection, noting that an unexplained delay may well be inconsistent with a claim to fear persecution.[54]
[53] Applicants’ Outline of Submissions, [32]; Asserted Bases for Legally Unreasonable Fact-finding (MFI1), second row.
[54] First Respondent’s Outline of Submissions, [16], relying on SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68, at [28]
In relying on the applicant’s delay in applying for a protection visa, the Tribunal applied a generalisation to the effect that a person who is outside his or her country of nationality but who genuinely fears harm if he or she returns to his or her country, would take steps to prevent the person from having to return to his or her own country of nationality. The Tribunal also relied on a generalisation to the effect that such person would be particularly concerned to take steps to prevent his or her being returned to his or her country of nationality when he or she becomes aware that the options for remaining legally in a country outside the person’s country of nationality are being reduced.
There is nothing unreasonable or irrational in the Tribunal relying on generalisations to this effect. It is within the ordinary experience of human beings that those who fear harm take or attempt to take steps to avoid the harm. Further, I do not accept the applicants’ submissions that the Tribunal ignored or did not weigh the applicant’s evidence. The Tribunal set out the evidence the applicant gave;[55] and the Tribunal referred to that evidence when it relied on the applicant’s delay as a ground for doubting the credibility of the applicant’s claims.[56]
[55] CB229-230, [91]
[56] CB229-230, [91], [92]
For these reasons, the applicants’ claims fail to the extent they claim the Tribunal acted unreasonably or irrationally by relying on the applicant’s delay in applying for a Protection visa.
Finding identified in paragraph (i)(e) of particulars
This paragraph is directed to the Finding that the evidence the applicant and the second applicant gave about their domestic arrangements was an attempt by them to overcome a concern expressed in the delegate’s decision record about how the applicant reconciles her Roman Catholic faith with her relationship with the second applicant, and the Finding that the Tribunal’s concerns about the reliability of the evidence the applicant and second applicant gave on “this point” compounded the Tribunal’s concerns about the reliability of the “claims and evidence advanced more generally”.[57] The applicants submit the Tribunal’s attaching significance to the fact that the applicant and second applicant did not share the applicant’s bed, viewed in the entirety of the applicant’s claims, “is questionable”, and the Tribunal gave that fact “disproportionate weight”.[58] The applicants further submit there is “no evidence that the applicants sought to overcome concerns expressed in the delegate’s decision”; the Tribunal did not refer to evidence given by Ms C that the applicant had not yet done a Catholic marriage course, and intended to get married; the Tribunal did not weigh the applicant’s evidence that she felt guilty, she had made a mistake, and done something wrong; the Tribunal did not refer to the fact that the applicant and second applicant gave evidence separately; and the second applicant gave evidence that he did not know how much money the applicant gave the landlord.[59]
[57] CB240, [135]
[58] Applicants’ Outline of Submissions, [33]
[59] Applicants’ Outline of Submissions, [34], [35]
The applicants do not submit that it was not reasonably open to the Tribunal to find that the discrepancies the Tribunal identified were relevant to its assessment of the credibility of the applicant and second applicant; their complaint is that the Tribunal attached disproportionate weight to that discrepancy. This should be taken as a submission that the Tribunal acted unreasonably in relying on the inconsistency to the extent that it did rely on it. I do not, however, accept any such submission. It is apparent from the Tribunal’s reasons that it took into account a number of matters when assessing the credibility of the applicants’ claims, and that the inconsistency was only one of those matters. Further, the Tribunal’s conclusion that the concerns to which the inconsistent evidence gave rise “compounds the Tribunal’s concerns regarding the reliability of the claims and evidence advanced more generally” suggests the Tribunal gave the inconsistency limited weight.[60]
[60] CB240, [135]
I also do not accept there was no evidence on the basis of which the Tribunal could find the evidence the applicant and second applicant gave about their domestic arrangement constituted an attempt to overcome “a concerns [sic] expressed in the delegate’s decision record regarding how the first applicant reconciles her claimed Roman Catholic faith with her relationship with the second applicant”.[61] There was before the Tribunal the delegate’s decision which contained a finding that the “fact she claims she believes in marriage but has chosen not to follow the rituals or practises [sic] of the Catholic faith, in addition to not receiving one of the sacraments, is indicative that she is not a genuine practising Catholic”;[62] it is reasonable to infer that the applicant was aware of the contents of the delegate’s decision including this particular finding; although the Tribunal did not put to the applicant the delegate’s finding, the Tribunal asked how the applicant reconciled with her claimed Catholic faith her living in a de facto relationship and having a child out of wedlock; and the applicant’s evidence about her domestic arrangements with the second applicant was given in response to that question. In any event, what was relevant to the Tribunal was not that the applicant gave evidence to overcome what the delegate considered to be a concern, but the evidence the applicant gave to explain the discrepancy the delegate identified which the Tribunal found compounded its concerns about the applicant’s credibility in general.
[61] CB240, [135]
[62] CB100
It is true that the Tribunal did not refer to the evidence given by Ms C that the applicant had not yet completed a Catholic marriage course, and that the applicant informed Ms C that she intended to get married. Three things may be said about that. First, the evidence cannot reasonably be considered to be relevant to whether there was any explanation of the discrepancy between the applicant’s claimed adherence to the Catholic faith, and the applicant’s living in a de facto marriage and having a child out of wedlock, contrary to the principles of that faith. That is, that the applicant had not yet undertaken a Catholic marriage course, or that she had not yet stated she intended to marry, is not reasonably capable of explaining the discrepancy. Thus, there would have been no need for the Tribunal to have referred to the evidence. As submitted by counsel for the Minister, the Tribunal was not required to refer to every piece of evidence.[63] Second, that the Tribunal did not refer to the evidence does not necessarily mean it did not consider it.[64] Third, even if the Tribunal failed to consider Ms C’s evidence, I would not be satisfied that this would have deprived the applicants a realistic possibility of a successful outcome and, for that reason, I would not have been satisfied the Tribunal would have made a jurisdictional error.[65]
[63] First Respondent’s Outline of Submissions, [17], relying on ETA067 v Republic of Nauru [2018] HCA 46, at [13] (Bell, Keane, and Gordon JJ): “There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.” That case concerned with the Refugees Convention Act 2012 (Nr), but the relevant provisions are not materially difference from those contained in the Act.
[64] ETA067 v Republic of Nauru [2018] HCA 46, at [13]: “The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons which, here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based.”
[65] BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (Yates, Wheelahan, and O’Bryan JJ) relying on Hossain v Minister for Immigration and Border Protection [2018] HCA 34, at [29] – [31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; at [45] (Bell, Gageler and Keane JJ).
Finally, I am not satisfied the Tribunal did not consider the evidence the applicants identify in their written submissions.[66]
[66] Applicants’ Outline of Submissions, [33], [34], [35]
For these reasons, the applicants’ claims fail to the extent they claim the Tribunal acted unreasonably or irrationally by relying on what it found to be discrepancies in the evidence the applicant and second applicant gave about their domestic arrangements.
Finding identified in paragraph (i)(f) of particulars
This paragraph is directed to the Finding that the Tribunal considered it significant that, despite the Tribunal’s extensive questioning of the applicant in relation to her delay in applying for protection she did not give as a reason the PSB officers having informed the applicant’s parents that they should warn the applicant not to poison overseas Chinese students with anti-China and anti-Communist religious beliefs. The applicants submit the Tribunal drew “an unreasonable distinction between information given to the first respondent and that not given to the tribunal, notwithstanding it being raised by the first applicant before it”.[67]
[67] Applicants’ Outline of Submissions, [36]
The “information given to the first respondent” is a reference to the applicant’s having informed the delegate of the visits.[68] The applicants’ submission appears to be that it was unreasonable for the Tribunal to attach any significance to the applicant’s not mentioning the PSB visits to the Tribunal in circumstances where she did mention those visits to the delegate. The applicants, however, do not explain why that is unreasonable; and I am not satisfied the Tribunal did act unreasonably. What was significant for the Tribunal was the context in which the applicant did not mention the PSB visits, namely, the Tribunal asking the applicant why she had delayed to apply for a protection visa. Viewed objectively, the claimed PSB visits in December 2011 or January 2012, if accepted, were capable of explaining why the applicant applied for the Protection visa on 2 February 2012 rather than at an earlier time. That the applicant did not mention the PSB visits in that context afforded a reasonable basis on which the Tribunal could find the PSB visits did not occur, thus affording a further ground for doubting the credibility of the applicant’s claims.
[68] Page 112 of transcript before Tribunal, being annexure “A” to affidavit of D Wu
The applicants’ claims, therefore, fail to the extent they claim the Tribunal acted unreasonably or irrationally by relying on the applicant’s not referring to the claimed PSB visits when the Tribunal questioned her about the delay in her applying for a Protection visa.
Finding identified in paragraph (i)(g) of particulars
This paragraph is directed to the Tribunal’s relying on the second applicant’s not having expressed adherence to the Roman Catholic faith as a reason why he feared returning to China. The applicants submit the Tribunal (unreasonably) assumed that a person would mention their claimed religion when first asked to identify the reasons why the person fears returning to his or her country of nationality; and there is no “logically probative evidence before the tribunal to suggest that a person who truly identified as a Roman Catholic would identify this reason for fearing return to their country of origin”.[69]
[69] Applicants’ Outline of Submissions, [37]
The Tribunal did not assume that a person would mention his or her claimed religion when first asked to identify the reasons why the person fears returning to his or her country of nationality. The Tribunal relied on the generalisation that, when a person is asked to identify the reason he or she fears returning to his or her country of nationality, the person would identify those fears; and where the claimed fear is the person’s being a Roman Catholic, the person would identify his or her being a Roman Catholic as a reason for fearing to return to the person’s country of nationality. The Tribunal did not act unreasonably by relying on such generalisation to find that, by not identifying his being a Roman Catholic as a reason for fearing harm on his return to China, the second applicant did not in fact hold any such fear.
The applicants’ claims, therefore, fail to the extent they claim the Tribunal acted unreasonably by relying on the second applicant’s not having claimed to fear harm because he is a Roman Catholic.
Finding identified in paragraph (i)(h) of particulars
This paragraph is directed to two findings. The first is that the second applicant’s attempt to elaborate on why he decided to become baptised “made his account appear rehearsed and unconvincing and based on practical imperatives (ie, that the first and third applicants had become baptized [sic] so he thought he should) rather than any genuine Catholic faith”.[70] The second finding relates to the second applicant’s evidence of what led him to alter his conviction from being against religion to being devoted to religion, that evidence being his witnessing the third applicant’s baptism. The Tribunal found it was not satisfied that the second applicant’s evidence explained “why or what, at that isolated event, triggered his commitment to Catholicism”.[71]
[70] CB241-242, [140]
[71] CB242, [141]
As to the first of these two findings, the applicants submit the Tribunal assessed the second applicant’s account of why he decided to get baptised by reference to “the tribunal’s unstated standard”; the Tribunal ignored or gave insufficient weight to the second applicant’s evidence that the third applicant had been sick; and the Tribunal was unreasonable in considering that “practical imperatives” do not evidence a genuine religious conviction.[72] As to the second finding, the applicants submit there was “no evidence before the tribunal to indicate an “isolated event” is insufficient to trigger a commitment to Catholicism”.[73]
[72] Applicants’ Outline of Submissions, [38]; Asserted Bases for Legally Unreasonable Fact-finding (MFI1), second row.
[73] Applicants’ Outline of Submissions, [38]; Asserted Bases for Legally Unreasonable Fact-finding (MFI1), second row.
I do not accept the Tribunal assessed the second applicant’s explanation for deciding to get baptised by reference to an unstated standard. The Tribunal relied on an implicit generalisation, or set of generalisations, based on ordinary experience, about adult persons who have decided to adopt a faith; and that generalisation or set of generalisations are that adult persons who decide to adopt a faith do so for particular reasons which they are able to articulate, and that those reasons would identify some aspect of the faith that inspired them to decide to adopt the faith, and explain why that aspect induced them to adopt the new faith. It was not unreasonable or irrational for the Tribunal to rely on such generalisations because they conform with “the ordinary probabilities of human experience”;[74] and it was reasonably open to the Tribunal to find that the reasons the applicant gave for deciding to become baptised and thus adopting the faith “ill-accorded with the probabilities of ordinary human experience as to be implausible”.[75] I also do not accept that it was unreasonable or irrational for the Tribunal to find that what it described as “practical imperatives”, namely, the second applicant’s deciding to get baptised because the applicant and third applicant got baptised, did not evidence a genuine religious activity.
[74] Republic of Nauru v WET040 (No.2)[2018] HCA 60, at [35]
[75] Republic of Nauru v WET040 (No.2)[2018] HCA 60, at [35]
Finally, it is true there was “no evidence before the tribunal to indicate an “isolated event” is insufficient to trigger a commitment to Catholicism”.[76] But the Tribunal did not rely on any generalisation to that effect. The “isolated event” to which it referred was the second applicant’s witnessing of the baptism of the third applicant; and the Tribunal found it was not satisfied that that isolated event, “as reasoned above”, explained why or what triggered the second applicant’s commitment to Catholicism.
[76] Applicants’ Outline of Submissions, [38]; Asserted Bases for Legally Unreasonable Fact-finding (MFI1), second row.
The applicants’ claims, therefore, fail to the extent they claim the Tribunal’s findings in relation to the second applicant’s evidence of why he converted to Catholicism were unreasonable or irrational.
Finding identified in paragraph (i)(i) of particulars
This paragraph asserts the Tribunal found that “the third applicant’s religious convictions and profile were entirely imputed from his parents”. The Tribunal, however, made no such finding. The Tribunal found the third applicant was too young to form his own motivation of purpose in being baptised; and that the third applicant’s baptism was obtained at the instigation of the applicant, and reflected the applicant’s intention.[77] The applicants do not submit these findings were not reasonably open to the Tribunal.
[77] CB242, [143], [144]
In his written submissions, however, counsel for the applicants submitted the Tribunal “made no effort at hearing to explore with the third applicant whether he could express any religious convictions”.[78] Counsel, however, has pointed to no material that could reasonably have suggested to the Tribunal that the third applicant – an infant of 17 months – had the capacity to understand, let alone answer, questions about his religious convictions. In the absence of any such material, it is impossible to conceive that a 17 month old infant had, or could have had, the capacity to understand and answer such questions and that, therefore, the Tribunal ought reasonably to have considered exploring with the third applicant his religious beliefs.
[78] Applicants’ Outline of Submissions, [39]
The applicants also submit that the Tribunal did not consider whether a baptism certificate “of itself would be sufficient to establish a religious profile for a 17 month old infant”.[79] The applicants do not explain why the Tribunal ought to have considered such question, particularly given the Tribunal’s findings that the third applicant was too young to form his own motivation of purpose in being baptised; and that the third applicant’s baptism was obtained at the instigation of the applicant, and reflected the applicant’s intention. The applicants identify no material before the Tribunal that could reasonably have suggested to it a claim that a 17 month old infant who had undergone a Catholic baptism in Australia would, for that reason, be exposed to harm on his or her return to China.
[79] Applicants’ Outline of Submissions, [39]
The applicants’ claims, therefore, fail to the extent they claim the Tribunal’s findings in relation to the third applicant’s having been baptised as a Catholic are unreasonable or irrational.
Finding identified in paragraph (i)(j) of particulars
This paragraph claims the Tribunal proceeded on the basis that a conclusion could be made because the applicants did not provide any argument against what the evidence suggested. That is a reference to the Tribunal’s statement that the “applicants did not provide any argument against that suggestion”, that suggestion being that “the evidence before the Tribunal does not indicate that these laws would apply or be enforced or administered against the first and second applicant for any reason other than the fact of their breach of the law, or in a discriminatory manner”.[80] In his written submissions, counsel for the applicants submitted this was unreasonable or irrational because “it is not whether or not the applicants made any arguments which the tribunal must consider but rather the evidence presented by them and how that evidence is to be assessed in light of the other evidence before it”.[81]
[80] CB243, [146]
[81] Applicants’ Outline of Submissions, [40]
The Tribunal did not proceed on any assumption to the effect that a conclusion could be made because the applicants did not provide any argument against what the evidence suggested. The Tribunal assessed the relevant evidence and made a finding on the basis of that evidence. The point of the Tribunal noting the applicants made no argument against what, in the Tribunal’s view, the evidence showed, was to record that the applicant had made no argument against the Tribunal finding what it considered the evidence showed.
This part of the applicants’ claims also fails.
Finding identified in paragraph (i)(k) of particulars
This paragraph relates to the following paragraph of the Tribunal’s reasons:[82]
As put to the applicants, however, based on independent information, the Tribunal considers the situation for the third applicant to be distinguishable from his parents in respect of the application of China’s of [sic] family planning laws, but that an assessment of whether or not the third applicant is a person in respect of whom Australia has protection obligations depends firstly on whether or not the fines required in order for him to be registered can and will be paid, and the consequences of them not being paid.
[82] CB243, [147]
Paragraph (i)(k) of the particulars claims the Tribunal proceeded on the basis that the application of China’s family planning laws depended only on two factual findings, and on the consequences of one factual finding. In his written submissions, counsel for the applicants repeated “firstly on whether or not the fines required in order for him to be registered can and will be paid, and the consequences of them not being paid” and asserted that by “this means the tribunal unreasonably limited the scope of its inquiry on this issue”.[83] Counsel for the applicants does not identify the inquiry the Tribunal was required to undertake “on this issue”, or the manner in which the Tribunal limited the scope of the inquiry it was required to undertake.
[83] Applicants’ Outline of Submissions, [41]
The Tribunal did not act unreasonably or irrationally by deciding that the proper assessment of the third applicant’s claims based on the first and second applicants’ having breached China’s family planning laws involved its first determining whether the first and second applicants would be able and willing to pay the social compensation fee. On the material before it, the potential harm the third applicant could suffer by the application of China’s family planning laws arose from the possibility of his not being registered because the first and second applicants would not be able to pay the social compensation fee. In those circumstances, having found that the first and second applicants were able and willing to pay the social compensation fee, the Tribunal found that the third applicant would not face harm as an unregistered child born out of wedlock.[84] The Tribunal did not act unreasonably or irrationally by proceeding in this way; and it did not limit any inquiry it was required to undertake.
[84] CB244, [152]
This part of the applicants’ claims also fails.
Finding identified in paragraph (i)(l) of particulars
This paragraph is directed to the Tribunal’s finding that it was not satisfied that the difficulties the first and second applicants will have in meeting their costs in China would be any more significant than the difficulties the first and second applicants claimed they experienced meeting the costs of living and having a baby in Australia, and of paying back debts they are accumulating in Australia.[85] In his written submissions, counsel for the applicants submits there “is no logically probative evidence including relevant financial information before the tribunal which would support its calculation”; and counsel refers to the applicant having offered to provide evidence of her debts.[86]
[85] CB244, [148]
[86] Applicants’ Outline of Submissions, [42]
I do not accept this submission. The Tribunal made extensive inquiries of the applicant about her and the second applicant’s financial position, including the rent the applicant claimed she and the second applicant paid, the money they borrowed, and the names of the persons from whom they borrowed the money.[87] It is true the applicant offered to provide receipts to the Tribunal, and the Tribunal member said she was “not interested in the receipts right now”; but it is apparent that the Tribunal accepted the applicant’s evidence she had given about her and the second applicant’s financial position and, therefore, did not require documentary proof of what she claimed. Further, the Tribunal referred to and relied on other evidence which it was reasonably open to it to consider probative. This included the willingness and ability of the families of each of the applicant and second applicant to finance their studies in Australia; the applicant and second applicant had demonstrated an ability to access work in Australia; and the applicant and the second applicant maintained frequent contact with their parents who are aware of the birth of the third applicant, thus indicating they would have the benefit of family support in China.[88]
[87] See pages 82-86 of the transcript of hearing before the Tribunal, being annexure “A” to the affidavit of D Wu.
[88] CB243-244, [148]
I do not accept, therefore, the applicants’ claims that the Tribunal acted unreasonably or irrationally in finding it was not satisfied that the difficulties the first and second applicants will have in meeting their costs in China would be any more significant than the difficulties the first and second applicants claimed they experienced meeting the costs of living and having a baby in Australia, and of paying back debts they are accumulating in Australia.
Finding identified in paragraph (i)(m) of particulars
This paragraph is directed to the Tribunal’s finding that the applicant would not be able to source funds, with the support of their families in China, to pay the social compensation fee.[89] In his written submissions, counsel submits that the Tribunal concluded that the “applicants’ indebtedness in Australia would be replicated in China so that expenses would be met and the social compensation fee would be paid”, but that this constituted “speculative guesswork”, and it ignored or failed to weigh evidence that did not support this conclusion. That evidence included the second applicant’s having a health condition that prevented work; the applicant’s parents not being happy about the birth of the third applicant and were against their marriage; the parents of the applicant and second applicant having borrowed money by giving security over their property and could not support the applicant anymore; the applicant’s father’s tractor having been confiscated; and, because debtors were making inquiries, there was a likelihood the debts could be recalled.[90]
[89] CB244, [149]
[90] Applicants’ Outline of Submissions, [43]
There are two matters to note. First, the Tribunal did not make a finding to the effect claimed in paragraph (i)(l) of the particulars. That is, the Tribunal did not find that the applicants’ indebtedness in Australia will be replicated in China so that the social compensation fee would be paid; the Tribunal found it was not satisfied the applicant and the second applicant would be unable to source funds with which to pay the social compensation fee. I do not, therefore, accept that the Tribunal engaged in any speculative guesswork because it is difficult to characterise a finding of non-satisfaction as reflecting, or being the product of, guesswork.
Second, assuming the applicant and second applicant gave the evidence counsel submits they gave, it remained for the Tribunal to weigh that evidence with all other relevant evidence and findings, including the matters and findings on which it relied for concluding it was not satisfied the applicant and the second applicant would be unable to source funds with which to pay the social compensation fee. It was reasonably open to the Tribunal to give greater weight to the matters on which it did rely than to the evidence of the applicant and second applicant when concluding it was not satisfied the applicant and the second applicant would be unable to source funds with which to pay the social compensation fee.
This part of the applicants’ claims also fails.
Paragraph 46 of Applicants’ Outline of Submissions
In his written submissions counsel for the applicants makes general assertions that throughout its reasons for decision the Tribunal uses “formulaic verbiage without clear and considered intellectual engagement”, these being “significant and cumulative concerns”, “cumulative”, “reasons”, and “concerns”. Counsel submits that these expressions are “much-overused”, and that these expressions “with little else forms the basis for the tribunal rejecting the first applicant’s conduct in Australia (at [136])”, and the Tribunal “has not been too specific about the evidence on which it has relied and why other evidence before it was not considered”. These submissions, formulated in general terms, may be dealt with generally. I do not accept the Tribunal did not intellectually engage with the claims and evidence that was before it; I do not accept the Tribunal did not identify the evidence and other matters on which it relied for not accepting the applicants’ claims; and I do not accept the Tribunal approaches its tasks by applying “formulaic verbiage” to the claims it considered.
Conclusory findings in paragraph 136 of Tribunal’s reasons
In the document titled “Asserted Bases for Legally Unreasonable Fact-finding”, there appears in the column “Impugned Paragraphs” the words and numbers “Conclusory paragraphs, eg 136”. In the column headed “Simplified Categorisation of Error” the following is asserted: “The [fact]-finding process was unreasonably selective (eg exclusive reliance on evidence which supports a finding + failing to consider other evidence + failing to explain why that other evidence was not preferred)”. Counsel for the applicant made no submissions in relation to any finding in paragraph 136 of the Tribunal’s reasons; and the particulars to the ground stated in the further amended application do not refer to any findings in that paragraph.
Conclusion and disposition
The applicants have not succeeded on any aspects of the ground on which they rely. I propose, therefore, to order that the application be dismissed. I will consider the question of costs when I pronounce my order.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 31 January 2020
CORRECTION
The words “Solicitors for the Applicants: McArdle Legal” that appeared under the heading “Representation” in the coversheet are deleted.
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