FEDERAL COURT OF AUSTRALIA

SZOYH v Minister for Immigration and Citizenship [2012] FCA 713

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrates Court on 19 December 2011 be set aside, and in lieu thereof, the following orders be made:

(a)    an order in the nature of a writ of certiorari to quash the decision of the second respondent signed 10 December 2010;

(b)    an order in the nature of a writ of mandamus, directing the second respondent to hear and determine the appellant’s application for review according to law.

3.    The first respondent pay the appellant’s costs of the appeal and of the proceedings before the Federal Magistrates Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

an appeal with many unusual FEATUREs

1    This is an appeal against a judgment of the Federal Magistrates Court made on 19 December 2011, dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal): see [2011] FMCA 1001.

2    It has many unusual features. The first is that the appellant is presently only three years of age, having been born in Australia on 17 October 2008. Despite his place of birth, the appellant is not an Australian citizen: see [2011] FMCA 1001 at [1]. Secondly, the appellant has never been to the People’s Republic of China where his fear of persecution is said to exist.

3    Thirdly, the appellant’s application for a protection visa was made on 19 February 2010 when he was only 17 months old. The “fiction” inherent in, among many things, the appellant having apparently made an “Australian Values Statement” and a statutory declaration in support of his application, is highlighted by the Federal Magistrate in his reasons for decision: see [2011] FMCA 1001 at [4]–[10].

4    Notwithstanding this “fiction”, the Federal Magistrate decided to proceed on the basis that the appellant’s parents were pursuing his protection visa application on his behalf as his common law guardians. This was the approach the Federal Magistrate had taken in an earlier decision of SZLSM v Minister for Immigration [2008] FMCA 1172 applying what McHugh J had said in Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; [2004] HCA 49. That approach was approved on appeal by Cowdroy J in SZLSM v Minister for Immigration and Citizenship (2009) 176 FCR 539; [2009] FCA 537 at [17]–[26]. On this basis, the Federal Magistrate proceeded to treat the appellant’s mother’s statement as constituting the basis upon which the appellant put his claims for a protection visa: see [2011] FMCA 1001 at [13].

5    Since the Minister took no objection to that course before the Federal Magistrate, or at the hearing of this appeal, I will proceed on the same basis.

6    This leads to the fourth and final unusual feature of this appeal. That is, that before the appellant’s protection visa application was lodged, his parents had unsuccessfully applied for protection visas in Australia: see [2011] FMCA 1001 at [3]. They were unsuccessful in those applications because the mother, who was the primary applicant, was disbelieved by the Tribunal who dealt with their applications. The appellant’s Tribunal recorded the details of those failed applications in the following terms [at 57]:

The [parents’] Tribunal did not accept that Ms Jin [the appellant’s mother] was arrested and detained while attending Christian worship in her family home in 1998, 1999 and 2006, and did not accept that, at the time of her arrival in Australia, Ms Jin had a well-founded fear of persecution for reason of her religion. The [parents’] Tribunal did not accept that, if she had left the PRC in the circumstances claimed, namely because she had been detained on three occasions and wished to freely practise her religion, she would have delayed lodging her protection visa application for two years; nor would [she] have failed to avail herself of the opportunity to attend church for some two years after her arrival.

7    Notwithstanding this failure, the claims the appellant’s mother has made on his behalf in his application rely upon their (that is, his parents’) religious persecution in China and the same incidents in 1999 and 2006 mentioned above. In addition, the appellant’s mother has put forward two other incidents: the first of which occurred in 2003, before the appellant’s family left China, and the second of which occurred in 2008, after the appellant’s family came to Australia in 2006. The second incident involved the appellant’s mother’s aunt who had remained in China.

8    As Mr Riley, counsel for the Minister, correctly pointed out in submissions, this circumstance makes it important to draw a clear distinction between the claims that were pursued by the appellant’s parents and the claims the appellant is pursuing in his application, as put forward by his mother on his behalf.

The claims made on behalf of the appellant

9    The four incidents upon which the appellant’s mother relied (on his behalf) are summarised in a letter that his legal advisers forwarded to the Minister on 17 May 2010. They are as follows:

•    In 1999, on Christmas Eve, [the appellant’s mother] and her extended family were detained by the PSB [Police and Security Bureau] for their family worshipping.

…

•    In early 2003 [the family’s] church was raided by the PSB and [the appellant’s mother] and her husband suffered detention and physical assaults in prison. Her husband was not able to walk for a period of months.

..

•    In April 2006 [the appellant’s mother] and her family were detained after being caught worshipping in the family home. [The appellant’s mother] suffered serious physical assaults. She and her family were only fined and released after her brother bribed the local police station commander.

…

•    In August 2008 [the appellant’s mother’s] aunt was killed by the local police for worshipping in the family home, for which compensation has been paid. Her mother also suffered permanent injury to her back as a result of this house raid.

10    In relation to the first three of these four incidents, all of which were claimed to involve the appellant’s mother being detained by the Police and Security Bureau (PSB), the legal advisers made the following submission:

We submit that [the appellant’s mother’s] detention by the authorities on three separate occasions is strong evidence that should [the appellant] be returned to China, there is a real chance that he would face serious harm as [her] son …, including detention, physical assaults by the PSB and forced transfer to a re-education camp.

11    As will appear below, by the time the appellant’s application came before the Tribunal, the focus of these claims had shifted to the persecution it was alleged the appellant would suffer as a consequence of his parents being persecuted in the practise of their Christian beliefs.

12    Attached to the letter of 17 May 2010 was a lengthy statement by the appellant’s mother in which she set out a detailed description of each of these four incidents. The most serious of the first three incidents, and the one specifically addressed by the appellant’s Tribunal, was the one that occurred in 2003 when the appellant’s father was claimed to have suffered serious injuries. It was described in the attached statement in the following terms:

152.    [In 2003] … my husband, my daughter and I walked to the Minister’s house for the usual Sunday sermon. When we arrived everyone was seated in rows as usual. We began to pray individually. After approximately fifteen minutes the Minister appeared and led a sermon about his personal experience with God and how he himself had first begun to believe in God. We then sang a hymn written at the back of the Bible and the sermon ended.

153.    Immediately afterwards there was a loud knock at the door. One of the worshippers asked “who is there?” A voice answered the police and ordered us to open the door. No one of us wanted to open the door, but the knocking continued, becoming more and more aggressive. Then everyone started to hide. Some people went to the bathroom and some to the balcony. I was holding my daughter so I did not move but I told my husband to hide. I was trembling and my heart was beating very fast. I was far more scared than the incident with the PSB in 1999 because my husband and daughter were involved and my daughter was still a baby. I could not believe that they had found us in such a big city, especially when we were in an apartment.

154.    When the Minister eventually opened the door, around eight or nine police officers barged into the room. One of them asked where the other people were and they began to search the room. Eventually they found my husband in the bathroom and pulled him by the hair to the living room. When everyone was found, one of the officers told us that we were going to the police station. We travelled there in a big white van.

155.    When we arrived at the police station we were put in separate rooms. I was still holding my daughter but my husband was put in a separate room. I felt extremely scared for him because this was my husband’s first incident with the police. There were three officers in the room, but one person did most of the speaking. He was seated in front of me. At first he questioned me about how I knew the Minister, and what he had been saying at the sessions. He asked me if I knew where the other underground cult members were. When I knew the answer I would tell them. At some stage the police officer told me that we had been dobbed in by the security guard in the apartment block and that they knew we had been attending the sermons each Sunday.

156.    After they finished questioning me they left the room for around five minutes. When they returned they began to ask me about the Korean Bibles. When I refused to answer these questions because of their serious consequences, one of the officers grabbed my hair with his hand while the other officer slapped me across the face. When my daughter began to cry, one of the police officers grabbed her from my hands and threw her to the police officer who had been asking the questions. They then started to throw her around like a ball. I was petrified she was going to fall to the floor and kept pleading for them to stop. When I tried to intervene one of the officers kicked me on my bottom so I fell to the floor.

157.    They eventually gave my daughter back to me and handcuffed my foot to the leg of the chair. I stayed the night in that room. We were not fed anything. The next morning at around 5.00am we were transferred to then Shenyang Detention Centre where we stayed for two nights. We were given a blanket, but this was taken by another female prisoners. It was very cold so my daughter developed a fever. At some stage a police officer gave her an adult pill which I think has caused her lung problems today.

158.    The next day a police officer came into my cell and told me that I would have to write a letter of repentance. It was very similar to the letter that I had to sign in the village. I had to rewrite the letter in my own handwriting and sign it. He said that if I was ever caught practising Christianity again, the police would be able to take over my restaurant. The police officer then told me that my husband had been seriously beaten while in custody and that I would have to keep this a secret or they would formally charge me and my husband with breaching public security and order. They told me he was at Shenyang Orthopaedic Hospital.

159.    Before I left the police officer said that the next time I was caught practising Christianity in a home church I would go to prison or a place where they would re-educate me about my beliefs. I do not think they knew that I had already been detained in my family village in 1999 because I had only given the police my Shenyang address. I believe if they had known about the incident in the village, I would definitely have been sent to a re-education camp.

160.    When I heard that my husband was in hospital I was very concerned. I went home with my daughter, took some money and went to the hospital by taxi.

161.    When I saw my husband he was in an awful condition. He had bruises around his eyes and looked very pale. He was sleeping. The doctor told me he needed two operations, the first because he had broken his ribs and the second in order to operate on his back. My husband later told me that when the police had asked him about his knowledge of the Bible and what the Minister was preaching, they didn’t believe him when he said he did not know, so the officers started to beat him with electric batons. I think they were sceptical that he did not know about the Bible, because the police were are that we had paid 10, 000 yuan for the Korean Bibles.

162.    After the operations my husband was confined to bed. He was unable to walk for ten months, I continued to work at the restaurant while his parents came to Shenyang to look after him.

(Errors in original)

13    The fourth incident is of a different nature to the first three incidents. Among other things, it did not involve an arrest and assault, but rather an assault and a death, and it allegedly occurred in 2008, sometime after the appellant’s parents left China and came to Australia. That incident was described in the appellant’s mother’s lengthy statement in the following terms:

235.    On 17 October 2008 my son, Tony Li was born.

236.    In December 2008 my mother telephoned. She told me that there had been an attack on the family worshippers on 31 August 2008. Because my son, Tony, had not yet been born, she did not want to worry me with the news earlier.

237.    She explained that the police had used their electric batons to restrain my parents, aunt and uncle, all of whom are in their seventies. My mother, paternal aunt and maternal uncle fell to the ground after being shocked by the batons. The police then continued to kick them.

238.    My maternal uncle’s wife, Feng Ren Jin, died immediately from the attack. When the police realised they had killed my uncle’s wife, they simply left without saying anything. Attached hereto and marked “E” is a copy of my uncle’s wife’s death certificate in Mandarin. My mother also told me that her back had been severely injured from the kicks. Four steel rods were inserted into her back and now she cannot bend below a certain point.

239.    My uncle passed away on 12 December 2008, just over two months after the death of his wife. He had refused to eat anything following the death of his wife. I was devastated when my mother told me this news and also very angry.

240.    Later my uncle’s daughter, Yong Ai Yin, engaged a lawyer, wrote a statement and appealed to the county government to complain about this incident. This produced no results after six months, although the lawyer had warned that it would take ten years. Yong Ai Yin then personally confronted the policeman who had caused her mother’s death at his home, after waiting outside the home each morning until the evening.

241.    In May 2009 my cousin was finally given some compensation money by the police officer. In return, the police officer said that if she continued to raise the mother’s death with the authorities, she would be sent to prison. The police subsequently banned all contact between my parents, my paternal aunt and my cousin’s family.

242.    Since then my parents, my parent aunt’s family and my cousins have been threatened, intimidated and put under surveillance by the police in the village. My parents and my cousin’s family have lost their freedom and have stopped worshipping together for fear of police reprisal. My mother, who continued to pray at home, was sent a summons on 20 April 2009 requesting her to attend a police interview for spreading a cult. Attached hereto and marked “F” is a copy of that summons in Mandarin.

243.    While I am sad when I think of my deceased aunt and uncle, I am not overly grieved. This is because I believe the day will come when God will resurrect the dead and eliminate injustice.

Attached to the statement was a death certificate (Attachment “E”) and a summons (Attachment “F”). Both were in Mandarin and I am unable to find any English translation of them in the appeal book.

14    In the concluding paragraphs of her lengthy statement, under the heading “What I fear would happen if I am returned to China”, the appellant’s mother made (among others) the following claims:

253.    If my family are (sic) forced to return to China we would certainly suffer further assaults from the Chinese authorities for our Christian beliefs. I am certain that if we were caught worshipping in the family home again, we would be sent to a re-education camp or detained. I have no doubt that it is not safe to bring up my son, Tony, as a Christian in China. The extent of the risk that we face as a Christian family in China is evidenced by the recent death of my aunt from violent acts of the PSB when they discovered my family worshipping at home.

The Tribunal’s decision

15    Before going to the crucial paragraphs of the Tribunal’s decision that deal with these four incidents, it is appropriate to set out the relevant parts of the “Findings and Reasons” section of the appellant’s Tribunal’s reasons where it disposed of any suggestion the appellant would suffer any direct persecution in China because of his religious or political beliefs, as claimed by the appellant’s legal advisers (see at [10] above). At the outset of its “Findings and Reasons” section, the Tribunal noted that the appellant’s mother had agreed with it that “in fact she did not think [the appellant] would be arrested, but was simply concerned about him if she and her husband were arrested”.

16    In the immediately succeeding paragraph, the Tribunal agreed with this assessment saying (at [139]) that:

In my view, as the applicant is a very young child and plainly could not realistically be perceived by the Chinese authorities to pose a challenge to their power for any reason associated with religion, I am satisfied that the chance of his being arrested, detained and imprisoned in China in the reasonably foreseeable future is remote in the extreme.

17    The Tribunal then turned to deal with the claim that the appellant would be denied the right to follow his religious beliefs in China if he were to go there with his parents. About this claim, the Tribunal said this (at [140]):

… The applicant is 26 months old and thus plainly has no religious beliefs of his own at present. As to whether he might adopt any religious beliefs in future and, if so, what those beliefs might be, cannot possibly be reliably foreseen by either his parents or this Tribunal. For that reason (sic “I”) consider the chance remote that, in the reasonably foreseeable future, he will be denied the right to follow his religious beliefs.

18    Having disposed of the claims that the appellant would suffer direct persecution in China, in the sense that he would be arrested, or would be persecuted for his religious beliefs, the Tribunal then turned to consider what it described as “the other claims”. The appellant’s Tribunal had earlier summarised those claims (insofar as they are being pursued in this appeal) in the following terms (at [136]):

It has been claimed that the applicant will face various forms of harm because his parents are known to have been members of an underground Christian church in China and would continue to attend an underground Christian church in Shenyang, their place of household registration, if they returned to China. This harm may manifest in his parents being jailed, as a result of which he would be separated from them. It is claimed that this enforced separation would amount to persecution.

19    The Tribunal disposed of these “other” claims in the following terms (at [142]):

142.    For the reasons raised in the 424A letter sent to the applicant, and the concerns discussed with them at the hearing, I have considerable doubt about the reliability of the applicants’ parents with regard to their own history. In particular I note the long delay in their application for a Protection visa after their arrival in Australia in 2006, the absence of any evidence beyond their own, internally contradictory, assertions that they attended church in Australia before August 2008 (the month in which they lodged their own application for a Protection visa) (sic), and the belatedness of the claim that they were detained in 2003 and, in the applicant’s father’s case, very seriously harmed in China. However, given that he showed the Tribunal considerable scarring to his back consistent with the latter claim, and described the 2003 detention in a reasonably convincing manner, I consider it most straightforward to consider the consequences for the applicant if his parents were indeed involved with an unregistered Christian family church in China, and if they were to resume that involvement on returning to Jilin province.

143.    As to the claim that his parents might be jailed for doing this, I am not persuaded that this will occur, in large part because of the absence of evidence from any source other than the applicant’s parents’ assertions that members of unregistered Christian family churches, or any churches, in Jilin province are being detained or jailed at present, or have been detained or jailed in the recent past. In particular I note the evidence (U.S. Department of State 2010) that family and friends have the right to meet at home for worship, including prayer and Bible study, without registering with the government, and the absence of reports that this right is not currently being respected in Jilin province.

144.    However, even if both parents were detained by police for attending a family church gathering, it is apparent from the evidence that they have many close family members in China who may take care of the child. I do not consider plausible Ms Jin’s claim that they would not do so. Further, there is the applicant’s aunt, who is already apparently willingly taking care of the applicant’s sister, having done so for some four and a half years to date. That this separation from her parents is not considered by them to constitute serious harm is illustrated by the fact that they left their daughter with her aunt despite having the option of bringing the child to Australia with them. The applicant’s mother also conceded to the Tribunal that her sister would be willing to take care of the applicant, at least in the short term. In my view the claim that the applicant would suffer serious harm by being separated from his parents, in the very unlikely event that they were jailed for participating in an unregistered family church in Jilin, is fanciful and there is no objective basis for it.

20    Neither in these findings, nor elsewhere in its “Findings and Reasons” section of the appellant’s Tribunal’s reasons is there any consideration, or mention, of the fourth incident, the 2008 incident. Indeed, there is only one mention of the 2008 incident in the appellant’s Tribunal’s reasons, as follows (at [62]):

In April 2008 [the appellant’s grandmother] was summoned to the police station for promoting a “cult”. In June 2008 [the appellant’s mother’s] aunt was killed by police for worshipping in the family home, for which compensation had been paid. [The appellant’s grandmother] had also suffered a permanent back injury as a result of this raid.

The ground(s) of this appeal

21    At this point it is convenient to set out the sole remaining ground of the appeal to this Court, as set out in the amended notice of appeal. It is as follows:

The Court erred in finding that the Tribunal had addressed the appellant’s claims as required by section 414 of the Migration Act.

Particulars

(a)    Error in finding that the Tribunal had addressed claims of persecution suffered by the appellant’s parents and other relatives because of their religious convictions both before and after 2003.

(b)    Error in finding that the Tribunal lawfully considered whether the appellant’s separation for [sic] his parents, in the event of their detention for practicing Christianity, would not be persecutory of the appellant.

(c)    Error in finding that a claim that the applicant seeing his parents forcibly detained by the Chinese authorities, and possibly returning months later with serious injuries (as happened to his father in 2003) would be persecutory of the appellant did not arise clearly on the material before the Tribunal and on the Tribunal’s own findings, and that it did not have to be addressed.

(Emphasis in original)

The Federal Magistrate’s decision

22    Treating each of the particulars of the sole ground of appeal as a separate ground, particular (a) is directed to the Federal Magistrate’s treatment of the Tribunal’s reasoning at [142]–[143]: see at [16] above. The Federal Magistrate disposed of the equivalent ground (Ground 3(b)) before him in the following terms:

106.    Here the starting point is that the Tribunal had “considerable doubt about the reliability” of their evidence. Influential in this doubt was the delay after their own arrival in Australia in seeking protection, the absence of any evidence other than their own “internally contradictory” assertions of church attendance before August 2008, and the late adducing of the claim that they were detained in 2003 and that the father was seriously harmed at that time ([142] at CB 229).

107.    It was against this background that the Tribunal decided nonetheless to consider the applicant’s circumstances and consequent harm that he may suffer on the basis that his parents were involved with an unregistered church in China, and that they would resume such involvement on return.

108.    Ground 3(b) as pleaded cannot be seen, as it is expressed literally, as a complaint that the Tribunal failed to consider the parents’ claims to persecution. It did not need to do so. What it was required to do was to consider their circumstances in the past as these could inform the chance of persecutory harm to the applicant in the future.

109.    As pleaded, therefore, the complaint in ground 3(b) is not made out. In any event, the Tribunal did consider the applicant’s claims on the basis that his parents were members of the underground local church, and that the father, in particular, had suffered harm (that is, that he had been gaoled and injured as a result) for this in 2003.

110.    But while past events can certainly inform consideration of the likelihood of future persecutory harm, that is as a guide to the future (Guo at 574 – 575), they are not determinative of this. In this sense, the parents’ past is relevant, not for its own sake, but as a guide to the future (VAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 59 at [16]).

111.    The bare claim, therefore, that the Tribunal failed to assess the claimed persecution said to have been suffered by the parents in the past fails because the Tribunal was not required by the exercise of its jurisdiction in this case to make any such consideration or finding.

112.    To the extent that these past events, which the Tribunal substantially accepted (the involvement with the underground church and the gaoling), could provide support to the applicant’s claims to fear persecution in the future, the circumstances presented in this case were such that the Tribunal reasoned that they did not provide a reliable guide to the future (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379).

113.    That the Tribunal was properly seized of the forward looking nature of the relevant test is clear. While it proceeded on the basis that the father had been gaoled in the past because of his religious activity, it was not persuaded that this would happen in the future to either parent, thus separating the applicant from them.

114.    This finding was reasonably open to the Tribunal on what was before it. It gave reasons ([143] at CB 229). The Tribunal therefore did consider the applicant’s parents’ “claims”, or more precisely their circumstances, to the extent that was relevant to the task before it. Ground 3(b) is not made out.

23    Particular (b) is directed to the Federal Magistrate’s dealing with [144] of the Tribunal’s reasons: see also at [16] above. The Federal Magistrate’s treatment of that paragraph is contained in the following paragraphs of his reasons for decision:

116.    The submission that the Tribunal simply relied on the mother’s evidence, and did not make a finding, is both misconceived and misrepresents the Tribunal’s approach. The Tribunal did rely on the mother’s relevant evidence. It evaluated this evidence. This is precisely what it is statutorily required to do (beginning with s.414 of the Act).

117.    The Tribunal reasoned that, even if they were gaoled in the future, and the applicant was separated from his parents, this would not amount to the applicant suffering “serious harm”. It was open to the Tribunal to find that, in circumstances where the applicant had many close relatives who would take care of him, any impact on him as a result of this separation would not amount to persecutory harm.

118.    Further, the Tribunal was reinforced in this finding by drawing on the analogy of the separation between the applicant’s sister from her parents for a period of four and a half years.

119.    It is tolerably clear that the Tribunal’s expression that: “... this separation from her parents is not considered by them to constitute serious harm...” (at [144] at CB 229) does not necessarily emanate from any such express statement by either of the parents, but from the circumstances of the actuality of having left their daughter in the care of relatives for such a long period without any expression by them that she had suffered “serious harm” as a result.

120.    In this regard, the Tribunal had the extensive evidence of the applicant’s mother on which it could draw as to the separation from the applicant’s sister, and the applicant’s own circumstances if they were all to return and the parents were separated from him (see in particular [74] – [78] at CB 214).

121.    In short, the Tribunal did consider the claim as to whether the applicant would suffer “serious harm” in the event of separation from his parents in the “very unlikely event” that they would be gaoled. It found serious harm would not eventuate because the relatives would take care of the applicant just as they had done for four and a half years for his sister. No legal error is revealed.

24    Finally, particular (c) seeks to advance what Mr Karp described as an “implied claim”. He submitted that claim was raised on the materials before the Tribunal and not considered by it. The Federal Magistrate’s treatment of this ground before his Honour is contained in the following paragraphs of his reasons for decision:

122.    The complaint that the Tribunal did not consider the claim that the applicant would suffer “serious harm” in the form of psychological damage as a result of seeing his parents being forcibly detained and returning with physical damage is, in the circumstances of this case, an example of a claim that perhaps may have been made before the Tribunal had the applicant had the benefit of his current legal advisers, but is instead made for the first time before the Court.

123.    In these circumstances, the Tribunal was not obliged to consider a claim that was not expressly made before it, or clearly arose from the circumstances presented (Htun, NABE (No.2)).

124.    I cannot see that in any of the material before the Tribunal, including the mother’s evidence and the submissions made by adviser, that any such claim was expressly made.

125.    As Ms Clegg in my view correctly submitted, with regard to the mother’s concerns as expressed in her evidence and the absence of anything relevant in the father’s evidence to the Tribunal, that the focus of the concern was with whom would look after the applicant, not his psychological condition. Such a claim did not implicitly, let alone clearly, arise from the circumstances presented.

The appellant’s case on this appeal

25    On particular (a), the crux of the appellant’s case in this appeal is that the appellant’s Tribunal made a jurisdictional error by not considering each of the component integers of the claims made on behalf of the appellant, specifically each of the four incidents identified by the appellant’s legal advisers (see [9] above). And, the appellant claimed that the Federal Magistrate erred by not identifying this jurisdictional error on the part of the Tribunal. In making these submissions, Mr Karp, on behalf of the appellant, relied upon the decision of the Full Court of the Federal Court in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 (Htun) where Allsop J (with whom Spender and Merkel JJ agreed) said this about the obligation of the Tribunal in considering an applicant’s claims (at [42]):

… The requirement to review the decision under s 414 of the [Migration] Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend … and Minister for Immigration and Multicultural Affairs v Yusuf … See also Sellamuthu v Minister for Immigration and Multicultural Affairs … It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act, for example ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant for example 866.211, make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with.

(Case references omitted)

26    Dealing specifically with the 2008 incident involving the death of the appellant’s aunt, Mr Karp submitted that that claim was a crucial component of the appellant’s claims and the Tribunal should have considered it, but had not. He submitted that the 2008 incident occurred more recently than the other three incidents and it involved a significant fact that “might have affected the result of which the [Tribunal] arrived”, relying upon SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222 (SXRB) at [33] per Lander J and SXOVB v Minister for Immigration and Citizenship (2011) 125 ALD 38; [2011] FCA 1462 at [43] per Katzmann J.

27    Mr Karp submitted that the question whether the appellant’s parents would be arrested in the future if they were to return to China would depend on whether their history of past arrests, or “pattern of persecution”, in the practise of their religion was accepted and the extent to which the future may reflect the past. He submitted that this pattern of past religious persecution was relevant to the prospects of they, and the appellant, being persecuted in the future on the obvious basis that the past may reflect the future. In this respect, he relied upon the observation to the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (at 575) as follows:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

28    As I understood Mr Karp’s submissions about particular (b), the appellant claimed that the Tribunal had erred in assessing the claims made about the persecutory effect of the appellant’s separation from his parents, if they were to be arrested in China for practising their religious beliefs. This aspect of the appellant’s ground of appeal can be disposed of briefly. As the Federal Magistrate correctly observed (see at [23] above), the Tribunal had extensive evidence before it about this issue and it made an evaluation of that evidence, as it was required to do by the Act. Thus, even if it made an error in making that assessment, that would not constitute a jurisdictional error. This is well-established on the authorities: see, for example, Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [20] and [28].

29    On the “implied claim” raised by particular (c), Mr Karp relied on what the Full Court had said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1; [2004] FCAFC 263 (NABE). In that decision, the Full Court reviewed a number of single judge and Full Court decisions bearing upon the obligation of the Tribunal to review the claims of the applicant. It observed (at [60]):

In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that “[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that “[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made” (at [16]). Selway J however went on to observe in SGBB (at [17]):

But this does not mean the application is to be treated as an exercise in 19th Century pleading.

His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said:

The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.

His Honour, in our view, correctly stated the position when he said (at [18]):

The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.

30    Then it concluded (at [61]) that:

We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.

31    Mr Karp submitted that, while the claim in particular (c) had not been expressly made before the Tribunal, it clearly arose on the materials before it.

32    This aspect of the appellant’s appeal can also be disposed of briefly. Mr Karp is correct in pointing out that in NABE the Full Court observed that the Tribunal’s obligation extended to reviewing the delegate’s decision on the basis of all the material before it: NABE at [60] (see [29] above). However, the Full Court went on to observe in the next paragraph of NABE that the Tribunal is not required to consider a case “that is not expressly made or does not arise clearly on the materials before it”: NABE at [61] (see at [30] above). In my view, this case falls into that category. Notwithstanding the fact that the appellant has been represented by the Refugee Advice and Casework Service (Aust.) Inc. at all relevant stages of his application and that Service put detailed and lengthy submissions to the delegate and the Tribunal, at no stage was a claim, in the terms of particular (c), expressly raised. Furthermore, I do not consider the materials that were put before the Tribunal clearly gave rise to a claim that the appellant might suffer psychological harm by witnessing his parents being detained and returning with serious injuries. For these reasons, I consider the Federal Magistrate was correct in concluding that that claim was not expressly made and was not: “implicitly, let alone clearly” apparent from the materials presented: Reasons at [125] (see [24] above).

The “component integers” of the appellant’s claims

33    It remains to consider the case raised by particular (a). As is apparent from Mr Karp’s submissions above, that particular relies upon the four incidents being treated as “component integers” of the appellant’s claims, in the sense that each one of them had to be considered by the Tribunal as a separate relevant consideration.

34    The expression “component integers” appears to have been first used in connection with an appeal under the Migration Act 1958 (Cth) in Htun. The critical part of the reasons of Allsop J in Htun (see [25] above) was: “To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend.” (emphasis added)

35    In Htun, the Tribunal rejected the applicant’s claim he would face a real chance of persecution if he were to return to Burma because of his welfare, social and political activities in Australia “with the TRW [Tribal Refugee Welfare] in particular”. In doing so, the Tribunal relied upon information it obtained from the Department of Foreign Affairs and Trade that such activities “were sufficiently innocent not to be of a level as to make him of any concern to the Burmese authorities”: see Htun at [40]. However, the Tribunal failed to consider the applicant’s claims that he had a number of friends in Australia, some of whom were members of the Karen National Liberation Army. The Full Court held that the Tribunal made a jurisdictional error in not considering this component of the applicant’s claim because it involved “political activity and also … friendships made with other Karen people of arguably seriously subversive background”. The Full Court obviously regarded this component of the applicant’s claim as an essential component of his claims for a protection visa such that it required consideration by the Tribunal: see Htun at [42] (at [25] above).

36    Aside from such an essential component or integer of an applicant’s claim, the Tribunal has no obligation “to refer to, or adequately to consider, evidence, whether or not it might be thought probative”: see Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24] per Kenny J and the cases referred to there. Accordingly, its failure to do so does not give rise to jurisdictional error.

37    In SXRB, Lander J described the difference between an integer and evidence in these terms (at [32]–[33]) as follows:

32.    The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim for an entitlement to a visa. Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.

33.    Any integer of any applicant’s claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumstantial. The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself. It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which the RRT arrived...

(Emphasis added)

38    It follows that whether a piece of evidence is of the kind that has to be considered by the Tribunal, depends on the nature of the evidence concerned, either considered alone, or in combination with other evidence, and its significance in terms of the possible effect it may have on the result of the Tribunal’s deliberations.

39    Of the four incidents relied upon by the appellant, there can be no doubt that the Tribunal considered the 2003 incident. It considered that incident notwithstanding the “considerable doubts” it had about the reliability of the appellant’s parents’ evidence. As it noted at [142] of its Reasons (see at [19] above), those doubts were engendered by: the long delay in their application for a protection visa after their arrival in Australia in 2006; the tenuous nature of their evidence about their church attendance in Australia before August 2008; and the late introduction of their claim in relation to the 2003 incident itself. Nonetheless, the Tribunal took account of the “considerable scarring” the appellant’s father had on his back which it thought was consistent with the 2003 incident and the “reasonably convincing manner” in which the appellant’s father described his detention during that incident. Having decided to accept the appellant’s father’s evidence, the Tribunal then decided it was “most straightforward to consider the consequences for the applicant if his parents were indeed involved with an unregistered Christian family church in China, and if they were to resume that involvement on returning to Jilin Province”.

40    It follows from this that the Tribunal did not limit its consideration to the 2003 incident itself, but rather proceeded on the basis that the 2003 incident supported the appellant’s parents’ claims that they were involved in an unregistered Christian church in China. On that basis, the Tribunal proceeded to consider what was likely to happen if the appellant and his parents were to return to China and his parents were to resume their involvement with an unregistered Christian church there. Having done so, it rejected the appellant’s claims on two bases:

(a)    It was not persuaded that the appellant’s parents would be detained as a result of attending an unregistered Christian church because there was no independent evidence of such detentions occurring in Jilin Province in the recent past and independent country evidence indicated that the government in China allowed people to meet at home for Christian worship: Reasons at [143] (see at [19] above).

(b)    Even if the appellant’s parents were detained by police for attending an unregistered Christian church, the evidence showed that there were family members in China who would take care of the appellant and any separation from his parents caused by their arrest and detention could not be considered to constitute serious harm, particularly in view of the fact that the appellant’s sister, who was four and a half years of age at the time, had remained in China with a member of the family: Reasons at [144] (see at [19] above).

41    So, while the Tribunal did not expressly consider the first incident in 1999, or the third incident in 2006, I consider the essential elements of those two incidents are the same as those of the 2003 incident, viz the mother had been detained by the PSB in the past for attending an unregistered Christian church, which the Tribunal clearly did consider. For this reason, I consider these two incidents merely provided further evidence of a fact the Tribunal was willing to accept as a result of its acceptance of the appellant’s father’s account of the 2003 incident. I do not therefore consider these two incidents can be characterised as separate component integers of the appellant’s claims such that they should have been expressly considered by the Tribunal. Nor do I consider that they required such express consideration by the Tribunal because they constituted evidence that was of such a nature or significance that it might have affected the result of the Tribunal’s deliberations.

42    For these reasons, I consider the Federal Magistrate was correct in his conclusion that: “What [the Tribunal] was required to do was to consider [the appellant’s parents’] circumstances in the past as these could inform the chance of persecutory harm to the [appellant] in the future”: Reasons at [108] (see [22] above). Further, his Honour was also quite correct in concluding that the Tribunal did not need to consider the details of the appellant’s parents’ claims of past persecution, including each of these three incidents, because it had concluded that those claims should be rejected for other reasons: Reasons [114] (see [22] above). It follows that particular (a) must be rejected insofar as it relies upon the first three incidents.

43    That leaves the fourth incident, the 2008 incident. As noted above (at [13]), the 2008 incident is different in nature to the other three incidents: it relied upon an account of the incident given (albeit by hearsay through the appellant’s mother) by the appellant’s grandmother; it was more recent than the 2003 incident upon which the Tribunal focused; it involved the death of one of the appellant’s mother’s aunts, a claim which was said to be supported by a death certificate. As such, on its face it provided independent (ie of the appellant’s parents) recent evidence to support the appellant’s claims that the appellant’s parents may suffer the ultimate consequence, that is, death, if they were to return to China and resume their involvement with an unregistered Christian church.

44    Because these differences are potentially significant in the context of the appellant’s claims, I consider this fourth incident constituted a separate component integer of those claims such that it should have been expressly considered by the Tribunal. Alternatively, even if it were to be taken as evidence in support of the same component integer to which the other three incidents was directed, I consider it provided evidence of such a nature or significance that, if it were accepted by the Tribunal, it might have affected the result that the Tribunal reached. Thus, on either basis, I consider it should have been expressly considered by the Tribunal.

45    It is not in dispute that the 2008 incident was only mentioned once in the Tribunal’s reasons and it was not expressly considered in the “Findings and Reasons” section of those reasons. Mr Riley, counsel for the Minister, submitted that it was not necessary for the Tribunal to make any express finding in relation to the 2008 incident because it was variously: evidence of so little significance that a finding was unnecessary; it was evidence that was directed to the same issue as the other three incidents, viz whether the appellant’s parents would be detained if they were to return to China and resume their involvement with an unregistered Christian church; and, in any event, it was subsumed in the Tribunal’s general findings at [144] of its reasons, where it said: “In my view, the claim that the applicant would suffer serious harm by being separated from his parents, in the very unlikely event that they were jailed for participating in an unregistered family church in Jilan, is fanciful and there is no objective basis for it.”

46    In making these submissions Mr Riley relied upon the Full Court decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]–[47] as follows:

46.    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47.    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

47    I reject all of these submissions. First, for the reasons set out above, insofar as the 2008 incident is to be treated as evidence, I consider it constituted evidence of such potential significance that, if it were accepted by the Tribunal, it might have led to it reaching a different result. This is so because the source of the evidence was independent of the appellant’s parents and was allegedly supported by a death certificate. Further, the evidence itself was much more recent than the 2003 incident that the Tribunal focused on. Thus, on its face, I do not consider the Tribunal could have logically and rationally rejected it on the same basis as it rejected the evidence contained in the other three incidents, viz that it was not independent and it was not recent: see at [40] above.

48    Secondly, while it was, in part, directed to the same issue as the other three incidents, the 2008 incident involved a potentially significant difference: if it were to be accepted by the Tribunal, it may provide evidence that a future intervention by the PSB, involving the appellant’s parents, may result in the death of one of them. If so, I do not consider it could seriously be suggested that the death of one of the appellant’s parents would not amount to serious harm for the purposes of the Act. The lack of serious harm was, of course, the alternative basis upon which the Tribunal rejected the appellant’s claims, based on the other three incidents: see at [40] above.

49    Finally, for either, or both, of the reasons set out above, I do not consider the 2008 incident was subsumed in the findings the Tribunal made at the conclusion of [144] of its reasons, set out at [45] above.

Conclusion

50    Htun and many other decisions to similar effect show that a failure to consider a component integer of an applicant’s claims, or a failure to consider evidence supporting an applicant’s claim, where that evidence is of such a nature or potential significance that it might have led to the Tribunal reaching a different result, is a jurisdictional error. Like the Tribunal, the Federal Magistrate does not appear to have considered the fourth incident in his reasons for decision. In my view, that involved an error on the part of the Federal Magistrate. For these reasons, I propose to make orders essentially in the form sought by the appellant.

Associate:

Dated:    5 July 2012