SZVGA v Minister for Immigration
[2015] FCCA 3269
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3269 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) not to grant applicants a Protection (Class XA) visa (Protection visa) – whether Tribunal made jurisdictional error by considering a claim made by one of the applicants on behalf of another of the applicants who had been invited to appear but who did not appear – whether the Tribunal failed to consider a submission made after the hearing before the Tribunal that related to a concern the Tribunal expressed at the hearing about the applicants’ delay in applying for a Protection visa – whether the post hearing submission was substantial and consequential – whether the Tribunal constructively failed to exercise its jurisdiction by not dealing with post hearing submission – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 414, 418, 424, 424A, 425 |
| Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 SZTIF v Minister for Immigration& Anor [2014] FCCA 945; (2014) 285 FLR 251 |
| First Applicant: | SZVGA |
| Second Applicant: | SZVGB |
| Third Applicant: | SZVGC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2791 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 18 November 2015 |
| Date of Last Submission: | 1 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| The first applicant appeared in person assisted by an interpreter |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The decision of the second respondent made on 8 September 2014 affirming the decision of a delegate of the first respondent made on 3 April 2014 not to grant the applicants a Protection (Class XA) visa is quashed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Refugee Review Tribunal to review the decision of a delegate of the first respondent made on 3 April 2014 not to grant the applicants a Protection (Class XA) visa.
The first respondent pay to the applicants such costs to which the applicants may be entitled as unrepresented parties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2791 of 2014
| SZVGA |
First Applicant
| SZVGB |
Second Applicant
| SZVGC |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of the People’s Republic of China (China). They seek judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant each of the applicants a Protection (Class XA) visa (Protection visa).
The first applicant (applicant) is the only applicant who made claims for protection in the form by which the applicants applied for a Protection visa. The second applicant, who is the applicant’s de facto partner, and the third applicant, who is their child, applied as members of the family unit.
Claims for protection
In a statement that formed part of the application for a Protection visa,[1] the applicant claimed to fear harm because of his religious beliefs as a Roman Catholic, and because he intended to practice his faith in the underground church if he were to return to China. Before the Tribunal the applicant also claimed he would be liable to pay a fine for his breach of the family planning regulations, and the second applicant would be subjected to forced sterilisation. In post hearing submissions made by his migration agent, however, the applicant stated he no longer wished to pursue his claim based on “his violation of China’s Family Planning Regulation”.[2]
[1] CB64-85
[2] CB149, [45]
According to his statement, the applicant arrived in Australia together with the second applicant in May 2008 on Student visas. When he commenced his studies, the “effect of cultural shock” kicked in due to the “great social contrasts”, and the applicant began to struggle.[3] “[D]isorientated and feeling distressed”, the applicant’s “interpersonal and problem-solving skills” suffered, and he was unable to interact with his peers. Overwhelmed with the responsibility of being young with a “partner to support”, the “strains of living and study”, and feeling as though he was unable to seek help, the applicant’s mental health suffered.[4] The applicant ceased studying, and turned to gambling as entertainment and stress relief.
[3] CB64, [4]
[4] CB64, [5]
Between December 2008 and May 2011 the applicant was a “regular punter”, attending the Star-City Casino to play blackjack “two or three times a week”.[5] Using the money left over from his causal jobs and the funds sent by his parents for his study expenses, the applicant “developed [his] own strategy” based on card counting and in a 2.5 year period made a “net profit of approximately $45,000 dollars”.[6] The applicant kept his gambling a secret from the second applicant and his parents.
[5] CB65, [8]
[6] CB65, [13]
In January 2011 the second applicant fell pregnant. That caused the applicant to have “negative thoughts” about his gambling.[7] He questioned “what kind of role model [he] would be to my child”, and whether he had missed out on the opportunity to receive a “better education in Australia”.[8] Distressed by the negative thoughts and seeking an escape the applicant began gambling more and increased his daily budget “from 1500 to 3000”.[9] The results were a disaster; over a period of 4 weeks the applicant lost the balance of the winnings he had previously accumulated and incurred $10,000 in debt after borrowing money from friends and losing it.[10] The second applicant learned of the applicant’s gambling and indebtedness to friends but was not enraged by the news. She gave the applicant comfort, and understood why he had begun to gamble in the first place. “For the sake of [their] unborn child” the applicant started to wean himself off gambling, using distractions, and by seeking help from gambling counsellors. He found the “urge was too strong to resist”, however, and secretly went to the Casino whenever he had money.[11]
[7] CB66, [15]
[8] CB66, [16]
[9] CB66, [17]
[10] CB66, [18]
[11] CB67, [50]
In August 2011 the applicant was introduced to Mr Y, a colleague of the second applicant. Over dinner, Mr Y discussed with the applicant his past gambling addiction, and how Catholicism saved him after noticing a pamphlet on the train. The pamphlet described how addiction is “a powerful bondage that binds people to the sins of the word” and is “an evil spirit that is sent by Satan into our lives to deceive us and destroy our lives ever so slowly”.[12] The applicant found Mr Y’s testimony to be powerful[13] and, on Mr Y’s invitation, started attending Sunday mass at a Church. After attending for “a couple of months”, the applicant began to take catechism classes, and committed to furthering his knowledge by reading the bible every night.[14] Following the baptism of the third applicant on 8 November 2011 the applicant lost interest in gambling completely, instead finding fulfilment in his religion.
[12] CB67, [24]
[13] CB69, [31]
[14] CB70, [36]
Before the Tribunal
The applicant confirmed the claims he made in his statement were true. The applicant said: “if he returned to China he would attend underground church activities, spread the Gospel, and invite friends to attend Mass and church activities”;[15] he had been “attending marriage preparation training for about six months”, and that he “attended mass regularly on Sundays since around Easter 2012”;[16] he would be “fined, arrested, and imprisoned”;[17] he knew “priests and followers had suffered persecution”, and that he was aware of what was happening with the underground church in China because he had spoken to friends at church after mass;[18] and the applicant would not attend the registered church if he were to return to China because the “registered church was controlled by the religious affairs bureau and that the bureau acts as the Pope and that attending such church would be an insult to the church”.[19]
[15] CB168, [41]
[16] CB167, [38]
[17] CB168, [41]
[18] CB168, [41]
[19] CB168, [41]
The applicant also identified two additional claims. The first was a fear of persecution because he would be required to pay a social compensation fee because the applicant’s child was born out of wedlock. The second was a claim was that the second applicant, whom the applicant claimed was pregnant, would be forcibly sterilised if she were required to return to China.[20]
[20] CB169-170, [46]
Near the conclusion of the hearing, the Tribunal raised a number of concerns about the applicant’s claims and the evidence he provided. These included:
a)The applicant applied for a Protection visa on 1 November 2013, even though the applicant claimed he had been involved with church activities since late 2011 or early 2012.[21]
b)Many of the answers the applicant gave of his religious practices and beliefs and values “were often general in nature”.[22]
c)The Tribunal had information that indicated that Fujian Province had a more liberal approach in relation to the religious practices of underground churches.[23]
d)The Tribunal had been informed by a telephone witness that the applicant had not been attending mass until after his baptism, which was contrary to the applicant’s written claim that he began to attend mass at least from Easter 2012.[24]
[21] CB165, [27]
[22] CB165, [28]
[23] CB165, [29]
[24] CB165, [30]-[31]
The applicant responded to these concerns by his agent providing written submissions after the hearing (post hearing submissions).[25] The post hearing submission stated the applicant did not want “at this point of time, to pursue the claim of being subjected to significant harm upon his return to China because of his violation of China’s Family Planning Regulation”.[26]
[25] CB138-149
[26] CB149, [45]
Tribunal’s reasons
The Tribunal accepted the applicant had been baptised into the Roman Catholic Church, and that the baptism occurred in Australia in 2013.[27] The Tribunal also accepted that the applicant’s responses to the Tribunal’s questions “were consistent with someone who claims a level of involvement with the Church since early 2012 who has undertaken religious studies for baptism and marriage”.[28] And, although the Tribunal found that much of the applicant’s focus in his statement in support of his application related to difficulties in dealing with gambling and quitting gambling, the Tribunal accepted the applicant “demonstrated a fundamental knowledge of a number of aspects of the Catholic religion and organisational arrangements within the church, consistent with him having undertaken religious classes for the purposes of being baptised and having attended at various religious ceremonies and including the celebration of mass”.[29]
[27] CB166, [35]
[28] CB167, [37]
[29] CB167, [38]
The Tribunal, however, was not satisfied that the applicant holds “in objective terms, a well founded fear of persecution if he returns to China”.[30] First, there was no evidence that the applicant had been actively involved in spreading the Gospel or inviting others into church activities in Australia or is engaged in the type of religious activities that, based on available country information, would bring him to the attention of the authorities in Fujian Province.[31] Second, although the Tribunal referred to country information provided by the applicant about the Chinese Government’s approach to underground churches, and that examples of persecution of underground churches had been provided, that “material essentially related to more China wide issues rather than [the] Fujian Province as such”.[32]
[30] CB167, [36]
[31] CB168, [42]
[32] CB168, [42]
The Tribunal concluded:[33]
The material did not satisfy me that, based on my overall assessment of the applicant’s level of religious activity, and my assessment of country information, that in objective terms he has a well founded fear of persecution.
[33] CB168, [42]
The Tribunal said that its concerns about the applicant’s claims to fear harm in China because of his religious beliefs “are reinforced by his delay in making his protection visa application”:[34]
At the hearing he informed me that he had not started to consider seeking protection until after he became baptised. I found this explanation regarding his delay in making his application unconvincing. In his statement in support of his application he said his interest in the Catholic faith had caused him to cease gambling in late 2011 and to become involved in church activities initially in 2011 and in a more significant way in 2012.
[34] CB168-169, [42]
The Tribunal further concluded:[35]
Overall I am not satisfied that having regard to the issues that I have referred to and the delay in bringing the protection visa application that the applicant does not have a well founded fear of persecution on the basis of his religious beliefs if he returns to China. I am not satisfied that the applicant would be involved in different religious activities to the ones he attends in Australia, if he returned to China. I am not satisfied that the religious activities that he engages in Australia, and if he continued those in Fujian province in an underground church, would bring him to the attention of authorities.
[35] CB169, [43]
The Tribunal referred to the two additional claims the applicant made at the hearing, namely, persecution based on the liability to pay a social compensation fee, and a claimed fear of the second applicant’s being forcibly sterilised.[36] The Tribunal also referred to the applicant’s agent’s statement, in the submissions I have already quoted, that the applicant did not want to pursue the claim “of being subjected to significant harm upon his return to China because of his violation of China’s Family Planning Regulation”.[37] The Tribunal, however, interpreted the applicant’s agent’s submission as referring “only to not wishing to pursue the claims in relation to significant harm to the applicant, rather than the harm to his partner in relation to forced sterilisation”.[38] The Tribunal, therefore, proceeded to “consider the claims in relation to the refugee criterion”.[39]
[36] CB169-170, [46]
[37] CB170, [46]
[38] CB169-170, [46]
[39] CB169-170, [46]
The Tribunal accepted the applicant had one child who was born in Sydney; that this breached China’s family planning laws, that the applicant would be required to pay a fee or fine within 30 days equal to 60% of 100% of the average disposable income of urban residents or the net average income of rural peasants in the previous year, subject to the parents paying more if their income exceeds these averages; that, based on statistics for the average incomes for Fujian province in 2011 the fines imposed for a child born out of wedlock ranged in rural areas from CNY4,456 to CNY7,427 and in urban areas from CNY13,069 and CNY21,781; that the fee or fine had to be paid within 30 days or, if the parent could not pay it, by instalment; and that the parent may need to pay amounts that are higher than the statistics for 2011 suggest.[40] The Tribunal did not accept that either the applicant or second applicant would be “prevented from finding work” and would not be able to earn “an income in China”.[41] The Tribunal, therefore, was not satisfied “that there is a real chance” that the applicants would suffer serious harm “simply because they were required to pay fines imposed on them for the breach of China’s family planning regulations”.[42]
[40] CB170, [47]
[41] CB170, [47]
[42] CB170, [48]
As to the claim based on forced sterilisation, the Tribunal considered the available country information and found that while there had been reported incidents of such practice in 2007 to 2009 in Fujian province, recent information indicated it was no longer a prevalent practice.[43] The Tribunal concluded:[44]
There is no information or claim before the Tribunal from the second named applicant (the de facto partner) that she holds any fear in relation to this issue. In those circumstances and having regard to all the evidence and materials before me, including the lack of a claim of any fear of such harm or persecution on the part of the partner, and considering the available country information, I am not satisfied that there is a real chance that the applicant’s partner will be forcibly sterilised if she returns to China. I am not satisfied in those circumstances that the first name applicant’s claim of fear is well founded.
[43] CB171, [48]
[44] CB171, [48]
Grounds of application
The application contains three grounds.
Ground 1
The first ground is:
The Tribunal failed to comply with s424A(1) of the Migration Act, 1958. ( Please refer to my affidavit for details)
In his affidavit, the applicant, after setting out s.424A(1) of the Migration Act 1958 (Cth) (Act), said (emphasis in original):
However, I believe the Tribunal erred in applying this section of the Migration Act. The reason being:
Albeit during the course of the hearing, I raised the fact that I would have to pay a hefty amount of social compensation fee and my de-facto partner be forced to receive sterilization procedure upon our return to China, due to the breach of the birth Control Regulation, I later instructed my migration agent not to pursue this claim as my second child was not born yet. My agent did advise the Tribunal about my decision on this claim in his Post-hearing submission.
Unexpectedly, the Tribunal proceeded to its assessment over the likelihood for my partner to be forcibly sterilised and made the unfavourable decision against us, based on the evidence and material before it.
It is not my intention to challenge the tribunal’s decision to proceed to consider this claim, but in the least, the Tribunal should give me or my partner a chance to submit further evidence and present our arguments on this claim.
Therefore, I am convinced that not only did the tribunal fail to comply with s424A(1) of the Migration Act, but also failed to comply with s425 of the Act.
The applicant, who is not legally represented, made no oral submission before me that specifically addressed this ground.
The applicant deposed he had instructed his agent not to make submissions in relation to the claimed fear of sterilisation because the applicant’s second child had not yet been born. This suggests the applicant only intended that the claim based on the claimed fear of forced sterilisation be withdrawn temporarily, and that it would be renewed after the second applicant would give birth to the second applicant.
Assuming that is what the applicant intended to achieve by instructing his agent not to pursue the claim based on the claimed fear of forcible sterilisation, did the Tribunal make any jurisdictional error in deciding that claim? In my opinion, the Tribunal did not. First, the only way the applicant could have achieved his objective of having the claim based on fear of forcible sterilisation determined after the second applicant was to give birth to her and the first applicant’s second child was by requesting the Tribunal not to make its decision until after the second applicant were to give birth, and the Tribunal agreeing to that request. The applicant’s agent’s submission cannot reasonably be construed as a request that the Tribunal defer making its decision until after the second applicant were to have her second child. That is so, even if weight is given to the words “at this point in time”. Those words must be read in the context of the entire paragraph 45 of the post hearing submissions in which they are found, and in particular the words “[a]fter much deliberation”. Those words indicate that the applicant considered the decision not to pursue the claim as being final.
Second, paragraph 45 of the post hearing submissions was reasonably open to the interpretation the Tribunal gave it; namely, that the applicant did not wish to pursue the claim based on his, rather than his and the second applicant’s being subjected to significant harm on his return to China because of his violation of China’s Family Planning Regulation. The Tribunal, therefore, made no error by considering, as it did, whether the second applicant had a valid claim for a Protection visa based on non-compliance with China’s Family Planning Regulation and forcible sterilisation. The Tribunal may well have committed a jurisdictional error if it had not considered those claims.
Even if I were to accept the Tribunal made a jurisdictional error because it considered a claim based on harm that may flow to the second applicant because of non-compliance with China’s Family Planning Regulation, the error would not have been attributable to the Tribunal’s not complying with s.424A of the Act. And there is nothing in the material before me that suggests the Tribunal failed to comply with s.424A of the Act.
Ground 1, therefore, fails.
Ground 2
The second ground is:
The Tribunal did not conduct the hearing in compliance with the s422B of the Migration Act, 1958 (please refer to my affidavit for details)
The applicant made no submission before me in relation to this ground. In his affidavit, however, the applicant deposed as follows:
Furthermore, the tribunal did not act in compliance with . . . s424B of the Migration Act, I have the following facts to support my assertion:
At paragraph 42 of the RRT decision record, the tribunal member stated “My concerns as to the applicant’s claims to fear harm in China on the Convention ground of his religious beliefs are reinforced by his delay in making his protection visa application ….I found his explanation regarding this delay in making his application unconvincing.”
I believe the tribunal did not conduct its assessment over my delay in applying a Protection Visa in a fair and just manner as it did not put any weight on my valid explanation and legal references, in relating to the delay in applying for protection, which were presented to the tribunal by my migration agent in his post-hearing submission.
Other than that, the interpreter arranged by the tribunal, seemed lack of knowledge about the Catholicism; she failed to find the equivalence of the Holy See into Chinese and failed to translate the Catholic Rituals including Ash Wednesday; Palm Sunday; Passover; Lent into English; plus other mistakes made during the course of the hearing, which subsequently led to the tribunal to draw the adverse conclusion about the level of my understanding in my Catholic faith.
This ground makes two complaints. One is poor interpretation. The difficulty with this part of the applicant’s case is that it is unsupported by evidence. There is no evidence of whether the interpreter did purport to interpret the “Holy See into Chinese and failed to translate the Catholic Rituals including Ash Wednesday; Palm Sunday; Passover; Lent into English”, and, if so, what interpretation the interpreter gave these words and expressions. Nor has the applicant identified the “other mistakes” the applicant claims the interpreter made. The applicants cannot succeed, therefore, on this part of their case.
The other of the two complaints the applicant makes is that the Tribunal did not place any weight on the submissions the applicant’s agent made in the post hearing submissions about the applicant’s delay in applying for a Protection visa. I read this part of the applicant’s affidavit as a complaint that the Tribunal did not consider those submissions.[45] Whether that is so requires me first to identify what the agent submitted in the post hearing submissions about the applicant’s delay in applying for a Protection visa.
[45] The Minister properly accepts it is open to the Court to so read this part of the applicant’s affidavit - First Respondent’s Outline of Submissions, 1 December 2015, [2]
In his post hearing submissions, the applicant’s agent identified as one of the Tribunal’s concerns the applicant’s delay in lodging his application for a Protection visa.[46] The agent addressed that concern as follows (the post hearing explanation for delay):[47]
[46] CB138, [2(c)]
[47] At CB139-141, [3]-[10]
3.In terms of the Tribunal’s first concern, our response is as follows . . .
4.In April, 2012, the review applicant had [been] exposed to the Catholicism for merely six months and was about to explore more about the Catholic doctrines by signing up for the Catechism class. At that time he did not have a comprehensive understanding about the Catholic Faith nor did he fully understand as to why being a genuine adherent of Christian Catholic and conducting standard Catholic activities would invoke persecution and suppression in China.
5.Apart from the Catholic teachings just began to make more sense to him and it was difficult for [the applicant] to anticipate how much he’d be involved in the Catholic practice in the wake of the completion of the catechism class and how much he’d be committed to the Catholic conviction.
6.In accordance with [the applicant’s] own words, he could not say with certainty that his intention of going to Sunday Mass and attending to the RCIA (Rite of Christian Initiation of Adults) Class was not, in part, to keep himself occupied such that the urges of gambling would not get on top of him again; as such, the review application did not have the well-founded fear of persecution, defined in the UN refugee Convention, to claim himself a Sur Place Refugee nor did he have the thought to do so.
7.Furthermore we would like to draw the tribunal’s attention on [7.2], the Refugee Review tribunal Guidance on the Assessment of Credibility [and] observe that “the significance of delay [in applying for protection] will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.” A delay can not in itself be the sole reason for doubting the applicant’s claims.’ and,
8.As per Henry J in R v Secretary of State for the Home Department, ex p Aluo [1991] the length of the delay in applying for protection is of less importance than the reason for it, a plausible explanatory [sic] for why an applicant did not formally seek asylum at an earlier date may mitigate even a protracted delay in applying for asylum . . .
As I have already noted, the Tribunal referred to the explanation the applicant gave at the hearing for his not having applied earlier for a Protection visa. The explanation, as recorded by the Tribunal, was that the applicant “had not started to consider seeking protection until after he became baptised”.[48] The Tribunal, however, did not refer to the post hearing explanation for delay. Two questions, therefore, arise: did the Tribunal’s not referring to the applicant’s post hearing explanation for delay mean that the Tribunal did not consider it? If so, did the Tribunal make a jurisdictional error by not considering it?
[48] CB169, [42]
The Minister accepts the Tribunal did not expressly refer to the post hearing explanation for delay. The Minister submits, however, that the post hearing explanation for delay only repeated the substance of the explanation for delay the applicant gave at the hearing before the Tribunal; and the “fact that the Tribunal did not clearly state that such contention was repeated in the post-hearing submission is of little moment in circumstances where the actual submission was considered by the Tribunal”.[49] Stated differently, the Minister submits the post hearing explanation for delay is in substance the same as the explanation the applicant gave to the Tribunal during the hearing, and the Tribunal’s not expressly referring to the post hearing explanation for delay does not reveal the Tribunal made a jurisdictional error.
[49] First Respondent’s Outline of Submissions, 1 December 2015, [11]
I do not accept the Minister’s submission that the post hearing explanation for delay is in substance the same as the explanation for delay the applicant gave to the Tribunal during the hearing. The explanation the Tribunal records the applicant gave at the hearing was simply that the applicant did not start to consider seeking protection until after he became baptised in March 2013.[50] The matters raised in the post hearing explanation for delay, however, raise in some detail matters of fact and of law. The post hearing explanation for delay referred to the state of development of the applicant’s understanding of the Catholic faith, his uncertainty in assessing the outcome of his engagement with the Catholic faith, and whether his engagement with that faith was because he had a genuine faith or because it only constituted a means of diverting activity away from his urge to gamble. Stated more succinctly, the post hearing explanation for delay submitted that even though the applicant was engaged with the Catholic faith for some time, it took some time for the applicant to determine whether he was truly committed to the faith.
[50] The applicant was baptized in March 2013: CB168, [39]
I am satisfied the Tribunal did not consider the applicant’s post hearing explanation for delay. The Tribunal referred to the concerns it had raised at the hearing with the applicant about the applicant’s delay in applying for a Protection visa, and referred to the response the applicant gave at the hearing, but not to the post hearing explanation for delay; and what the Tribunal specifically addressed in its reasons was the response the applicant gave at the hearing. Given that the post hearing explanation for delay was obviously relevant to explaining the applicant’s delay, and, hence, it was relevant to the significance the Tribunal should attach to that delay, the Tribunal would have referred to the post hearing explanation for delay had it in fact considered it. That the Tribunal did not refer to the post hearing explanation for delay indicates, and I find, that the Tribunal did not consider it.
One approach to determining whether the Tribunal’s not referring to the post hearing explanation for delay constitutes a jurisdictional error is to apply the principles Robertson J identified and applied in Minister for Immigration and Citizenship v SZRKT.[51] In that case, his Honour said that whether or not a Tribunal’s not considering information will result in the Tribunal making a jurisdictional error turns on the importance of the information to the exercise of the Tribunal’s jurisdiction:[52]
The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[51] [2013] FCA 317; (2013) 212 FCR 99
[52] [2013] FCA 317; (2013) 212 FCR 99 at [111]
Given the reasons for which the Tribunal affirmed the delegate’s decision, the Tribunal’s failure to consider the post hearing explanation for delay was substantial and consequential. If, as it was reasonably open to it to do, the Tribunal had accepted the post hearing explanation for delay, the Tribunal could have been satisfied there was a reasonable explanation for the applicant’s delay in applying for a Protection visa. That, in turn, could have resulted in the Tribunal accepting there was a real chance the applicant would engage in religious activities in Fujian province that would bring the applicant to the attention of the authorities, and that the applicant, therefore, had a well founded fear of persecution.
The matter may be analysed in a different way. The Tribunal referred to the post hearing submissions; and the Tribunal said that “[w]here relevant those submissions are considered later in these reasons and are referred to as the written submissions”.[53] It could be argued that the Tribunal’s not referring to the post hearing explanation for delay indicates the Tribunal considered the post hearing explanation for delay, but concluded it was not relevant. Even if that were accepted, however, the Tribunal did not in its reasons expose any reasoning by which it may have arrived at that conclusion. That, in turn would entitle me to infer and, in the circumstances of this case, I would infer, that the Tribunal did not undertake the review the Tribunal was obliged to undertake by s.414(1) of the Act.
[53] CB165, [32]
When carrying out a review under s.414(1) of the Act the Tribunal must at the very least do the following:[54]
a)It must “consider” the information that is provided to it or which the Tribunal obtains under s.418, s.424, or s.425 of the Act. That is, it must “view or contemplate attentively ... examine ... scrutinise ... to fix the mind upon ... [or] to reflect upon” that information.[55]
b)The Tribunal must consider the information, or, stated another way, the Tribunal must engage in a process of reasoning in relation to such information, for the purpose of:
i)identifying the “material questions of fact”; that is, identifying the facts asserted by the applicant or which are apparent from the information before it which, if accepted by the Tribunal, would satisfy the criteria specified in s.36(2)(a) or s.36(2)(aa) of the Act; and
ii)making findings on each material question of fact it has identified on the basis of evidence and other matters before it.
[54] SZTIF v Minister for Immigration & Anor [2014] FCCA 945; (2014) 285 FLR 251 at [26]
[55] Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [71], [72] (Heerey, Goldberg and Weinberg JJ)
The Tribunal “did not assess in any real or active way” [56] the post hearing explanation for delay, or disclose in its reasons “any evaluation” [57] of the post hearing explanation for delay, or undertake any “process of weighing” the post hearing submission.[58] What the Full Federal Court in Minister for Immigration and Border Protection v MZYTS said of the Tribunal’s failure in that case to evaluate a post hearing submission applies with equal force to the Tribunal’s not evaluating in the case before me the post hearing explanation for delay:[59]
The absence of any such evaluation in the face of what the visa applicant and his adviser submitted, and in the context of the Tribunal’s statutory task, can only signify a constructive failure to exercise jurisdiction.
[56] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [39] (Kenny, Griffiths and Mortimer JJ)
[57] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [45]
[58] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [50]
[59] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [44]
This part of the applicants’ claims, therefore, succeeds.
Ground 3
The third ground is:
The Tribunal assessed the possibility of my de-facto partner to be forcibly sterilized because of the violation of China’s family Planning Regulation, but the Tribunal failed to invite my de-facto partner to appear in the tribunal, presenting her arguments and evidence in relating to her chances of being subjected to significant harm if she were forcibly returned to China. Therefore, the tribunal erred in applying the s425 of the Migration Act, 1958.
The Minister submits the Tribunal had complied with s.425 of the Act by having invited all of the applicants to appear before the Tribunal to give evidence and to make submissions. That invitation was real and meaningful; and it did not cease to be real and meaningful only because, at the hearing, the Tribunal reasonably understood the applicant made a claim on behalf of the second applicant which the second applicant had not previously made.
I agree with the Minister’s submissions. The second applicant received notice of the invitation to appear before the Tribunal. The Tribunal received a “Response to hearing invitation” which represented that all three applicants intended to attend the hearing.[60] There is no evidence that explains why the second applicant did not attend the hearing. There is no evidence, for example, that she was ill, or she encountered a mishap on the way to the Tribunal. Nor is there any evidence that the applicants applied for an adjournment of the hearing because the second applicant could not make the hearing.
[60] CB125
The matters that may give rise to unease are that at the time the Tribunal invited all applicants to attend the hearing, the second applicant did not make any claim for protection; yet, at the hearing, a claim for protection was made purportedly on behalf of the second applicant, but the second applicant did not appear before the Tribunal to give evidence and make submissions. These matters, however, should not give rise to any unease. Let it be assumed the applicant made the claims in relation to the second applicant with the second applicant’s authority. The second applicant was not obliged to attend the hearing to give evidence and make submissions. Her unexplained failure to attend the hearing may reasonably give rise to the inference that the second applicant was content to permit the applicant to raise her claims on her behalf. The Tribunal was not obliged to actively assist the second applicant by suggesting to the applicant that the second applicant should appear before the Tribunal to give evidence and make submissions.[61] There was no need for it to do so, given that the Tribunal had already invited all applicants to attend.
[61] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
On the other hand, assume the applicant made the claim purportedly on behalf of the second applicant without the second applicant’s authority. In the absence of circumstances that may reasonably have suggested to the Tribunal the applicant was not authorised to make any submissions on behalf of the second applicant, the Tribunal was entitled to assume that the applicant did have the authority to make a claim on behalf of the second applicant. It is difficult in those circumstances, however, to imagine how the second applicant may have suffered prejudice. If the applicant did not have the second applicant’s authority to make a claim on her behalf, the applicant’s having made the claim, and the Tribunal’s not accepting it, has left the second applicant in the same position she would have been in had the applicant not purported to make the claim on her behalf.
Ground 3, therefore, fails.
Conclusion and disposition
The Tribunal failed to consider a submission the applicant made after the hearing that addressed a concern the Tribunal expressed at the hearing, and on which the Tribunal relied when affirming the delegate’s decision not to grant the applicants a Protection visa. The submission was substantial and consequential. By not considering it, the Tribunal made a jurisdictional error.
I propose, therefore, to order that the Tribunal’s decision be quashed, that the Administrative Appeals Tribunal be substituted as the second respondent, and that the Administrative Appeal Tribunal consider the applicants’ application for review of the delegate’s decision according to law. I also propose to order that the Minister pay to the applicants such of their costs as they may be entitled to recover as unrepresented litigants.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 11 December 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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