FEDERAL COURT OF AUSTRALIA

SZQXV v Minister for Immigration and Citizenship [2013] FCA 124

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

overview

1    The appellant, a citizen of the Peoples’ Republic of China (China or PRC) overstayed her tourist visa in 2011. She subsequently applied for a protection visa but her application was refused by the Minister’s delegate and on review by the Refugee Review Tribunal (Tribunal).

2    The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court, but her application was dismissed.

3    She then appealed to the Federal Court claiming errors of law on the part of the Federal Magistrates Court in failing to find that the Tribunal had committed jurisdictional error in making its findings.

4    At the adjourned hearing of the appeal in the Federal Court, the appellant moved to press grounds of appeal that were different from those outlined in her initial notice of appeal. The Court has considered the merits of the proposed grounds and, having done so, refuses leave to appeal and dismisses the appeal with costs.

5    The proposed ground of appeal advanced on behalf of the appellant was that the Tribunal had failed to regard a sexual assault allegation said to be relevant to her refugee claim. The Court accepts that the Tribunal did not consider that allegation, which had been recorded in the delegate’s decision record and in a submission to the Tribunal by lawyers for the appellant, but finds that the failure to do so does not constitute jurisdictional error.

application for protection visa

6    The appellant, who is a citizen of China, arrived in Australia on 18 April 2011 as the holder of a tourist visa. She did not depart when her visa ceased on 28 April 2011. She was later detained by New South Wales police in July 2011 and has been in immigration detention since.

7    It was only following her detention that the appellant applied for a protection visa, pursuant to the Migration Act 1958 (Cth) (Act or Migration Act) claiming that Australia owed her protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (Refugees Convention or Convention).

8    In her initial application it was stated in handwriting that the applicant left her country “to avoid further prosecution because of my religious belief” and that she believed she would be “prosecuted and tortured by the Chinese authority if I was returned”. It was also stated that she was a “genuine Christian”. By a further statement of claims submitted on her behalf by lawyers under cover of a letter dated August 2011, the appellant indicated that, in the early 1970’s, her parents often took her with them when they went to their “underground Church services”, and that growing up she witnessed them practising their Catholic faith “which has deeply influenced my beliefs and was always being told stories about Jesus and the Bible”. She added that growing up she did not fully comprehend the concepts of Catholicism, “but I always participated in Church and prayer gatherings which has taught me a lot about the Catholic faith”.

9    The appellant further stated that during Christmas 1995 she went to participate in Church services with a friend and that is where she met a man who later became her husband.

10    She said her husband was diligent, hard working and ambitious and established a pharmaceutical factory “under the gospel of God”. The appellant claimed that subsequently a government official created many difficulties for her husband when he refused to sell the factory to him.

11    The appellant also mentioned a time in late 2000 when she participated with a number of others in “underground Church activities” and the police visited the premises and subsequently each person was fined and required to sign a document stating that they would never participate in such gatherings again. She said that everybody apart from her husband and she were subsequently released. She said her husband was assaulted and eventually she paid a bond whereby she and her husband were released.

12    Later, in that same year, she stated, her husband’s factory was closed but he again refused to sell.

13    She also stated that towards the end of that same year her husband was attacked by several men when leaving a restaurant.

14    The appellant stated that her parents were also questioned and threatened.

15    She then stated that: “We became homeless and drifted on the street” and that her husband suffered mental problems and became ill and in early 2001 passed away. At that time she had a young son.

16    The appellant said that after her husband passed away, her mental condition deteriorated.

17    She then stated that in 2010, when praying at home, the police came and seized her bible and other religious materials and she was taken to the police station, questioned and fined. She also claimed that whilst detained she was beaten for her religious practices and sustained injuries to one of her legs and still carries a scar. As a result of these events she attempted suicide by taking tablets.

18    The appellant claimed that she would be harmed and mistreated if she were to return to China because she was a practising Christian and there is nowhere in China where she would feel safe. She also stated that the authorities would not protect her as the practice of underground Christianity in China is “an illegal practice”.

19    The appellant was invited to attend and did attend an interview with the Minister’s delegate in relation to her application. She was at that time assisted by a law firm. Following the interview her lawyers provided additional documents to the delegate as requested.

20    The delegate, after considering relevant information, was not satisfied that the appellant met the criteria for being granted the protection visa. While the delegate accepted a number of the claims made by the appellant about her life story and specifically found that she was a genuine Christian, the delegate was not satisfied that the appellant had such a profile, as a religious leader or organiser, that would attract adverse interest from the Chinese authorities should she return to China. The delegate found there was no real chance of harm on her return for that reason.

21    The delegate also noted that after arriving in Australia the appellant made no attempts to seek protection and absconded from her travel group and remained onshore unlawfully until the police detained her during a random check. The delegate saw this as an indication that she was not planning to apply for protection. Without quite saying so, it would appear the delegate treated these facts as bearing upon the question whether the appellant had a real fear of persecution.

22    In the delegate’s decision record, the delegate listed the appellant’s claims for protection in a way that faithfully reflected those mentioned above and set out in the protection visa application. However, the following claim in the summary provided at section 4 of the delegate’s decision record was not to be found in the application and accompanying documentation:

At Christmas 2000 she was returning home and was dragged by a several unknown men into a car where they sexually assaulted her. They took her mobile phone and called her husband telling him about what happened. He became very upset. She did not want to tell anyone, including police, about this incident.

23    It also appears that in the course of explaining her fears of persecution in China due to her Christian beliefs that the appellant advised the delegate that:

Last month, one of her Church members named … was detained by police.

24    Finally, it also appears that the appellant informed the delegate that she was not willing to relocate to somewhere else in China, “because she cannot abandon her old mother. She has all her friends and family in …”.

review by refugee review tribunal

25    With her lawyers’ assistance, the appellant then sought review of the delegate’s decision in the Tribunal.

26    Following an invitation to the appellant, through her lawyers, to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, the appellant’s lawyers wrote to the Tribunal attaching “the applicant’s response” to the invitation, noting that the appellant would require the assistance of a Mandarin interpreter at the hearing and advising that a representative of the law firm would not be attending the hearing.

27    The “applicant’s response” was in fact a submission, prepared by the lawyers on their letterhead, addressed to the Tribunal.

28    The lawyers’ submission on behalf of the appellant noted that they were instructed that their client feared persecution in China by reason of her Christian faith and her imputed political opinion of opposition to the Chinese authorities. It was further stated:

Our client will be perceived to oppose the Chinese authorities as a result of her Christian faith, together with her application for asylum in Australia.

29    The submission noted the delegate’s findings, provided responses to a number of those findings, attached country information and supporting documentation and then, under the heading “resolution of this matter”, set out, at [16] to [26], a submission as to how the matter should be resolved. In that section the lawyers recounted what were obviously considered by the appellant to be key factual matters, as follows:

17.    In October 2000, our client and her husband were arrested by the Chinese authorities for their attendance at the house church meeting. Our client and her husband were the only members of the group who were not released on payment of a fine. Our client’s husband was physically assaulted by the police, who eventually demanded a $3,000 bond for their release.

18.    Three days after refusing to sell his factory to a government official, our client’s husband was attacked by five unknown assailants. The attackers brutally beat our client’s husband, who sustained multiple fractures and lost hearing in his left ear. When a crowd gathered, the attackers fled in a government vehicle.

19.    Around Christmas 2000, our client was dragged by several unknown men into a car where they sexually assaulted her.

20.    On 20 November 2010, our client hosted a church meeting at her home. The Chinese authorities arrived and accused them of holding an ‘illegal religious gathering’. Our client was detained by the Chinese police, and released the following day, although she was neither arrested nor charged with the commission of any offence. She was also fined 5,000 yuan.

30    The Tribunal subsequently held a hearing at which the appellant gave evidence. It is an agreed fact on this appeal, that, on the hearing in the Tribunal, the matter mentioned in [19] of the lawyers’ submission to the Tribunal and the claim of sexual assault noted in section 4 of the delegate’s decision record were not the subject of any evidence, cross-examination or other discussion or consideration.

31    In the result, the Tribunal was of the view that the appellant was not a person to whom Australia has protection obligations under the Refugees Convention and so was not entitled to a protection visa.

32    Put relatively shortly, while the Tribunal accepted, at [84], that there is a real chance underground Catholics in the city from which the appellant came may suffer persecution, the Tribunal was of the “firm view” that there is no real chance that the appellant would suffer persecution if she were to return to China, “because she is not an underground Catholic and she has never been a practitioner of this religion in China and therefore she will not practice this religion on return to China and will not face any persecution”.

33    The Tribunal member discounted the claims of the appellant to have been associated with the practice of Catholicism in China through her parents. Indeed, the Tribunal found, at [86], that “she has never been a Catholic and has never engaged in underground Catholic religious practice in China and that she has fabricated these claims solely for the purposes of qualifying for the protection visa”.

34    The Tribunal noted inconsistencies and implausibilities in her evidence and, at [87], found her “not to be a credible witness”.

35    The Tribunal expressly found, at [88], that if the appellant’s claims were true, “then she would not have lacked the very basic knowledge about [Catholicism] and its practice in China and she would not have waited until she was 20 years of age to be baptised and she also would have baptised her son, at least provisionally”.

36    At [47] of the decision record of the Tribunal, events from late 2000 were noted by the Tribunal. It is there recorded that the Tribunal asked the appellant what adverse consequences she had faced in China for the practice of her Catholic religion. The Tribunal indicated she then “talked about two incidents which she had also noted in her undated statement and statement of claims”. First, she said that on a Saturday in late 2000 she and her deceased husband were gathered in a home of a Church member when four uniformed and several other un-uniformed policemen entered and yelled to stop all religious activities immediately. They alleged the group were gathering in contravention of laws of China. All of them were then taken to a police station for questioning and subsequently all of them, except she and her husband, were released after they paid fines of 300 RMB each and wrote written guarantees that they would never participate in such gatherings again. The appellant stated that she and her husband were not released “because the deputy captain of the police station, who is a relative of [the government official], realised that [the government official] was upset with them because they refused to sell to him their pharmaceutical factory”. The Tribunal noted that, relevantly, the appellant wrote in her undated statement that this man offered a very low price for it and they refused to sell it and consequently he threatened to kill her husband. Subsequently, later in the day, the appellant was released from the police station in order to obtain funds to have her husband released, which she did. She also said that while her husband was detained he argued with the police and was assaulted badly by them.

37    In the Tribunal’s decision record, at [48], it was further noted that the appellant had written in her undated statement that her husband was assaulted again soon afterwards in late 2000 after they came out of a restaurant at night and he suffered broken bones and ear drums, causing him hearing loss. It was there noted that the appellant wrote in the undated statement that after these incidents she made numerous complaints with the relevant government departments, but they were all rejected and soon after their factory was closed down on the basis that they were involved in illegal gatherings and spreading religious beliefs. The Tribunal also noted that the appellant said, at the hearing, that as a consequence of these incidents her mental health was not good and people did not take her seriously. The Tribunal then noted that in her undated statement the appellant stated that her husband passed away in early 2001 as the result of long term depression. After that her mental health worsened, although with the support of family members and “sisters of her Church” she fully recovered.

38    At [49] of its decision record, the Tribunal noted that the appellant reiterated at the hearing that after the incidents in late 2000, just noted, she and other Church members did not experience any hostility from the Chinese authorities for their religious practices. The Tribunal further said that the appellant “also said that the problems she and her deceased husband had with [the government official] were unrelated to their religious practise”.

39    At [50], the Tribunal noted what the appellant said about the incident that she claimed took place on 20 November 2010.

40    What may be noted in relation to this part of the decision record of the Tribunal is that there is no separate account of the appellant’s claim to have been sexually assaulted around Christmas 2000, the claim recorded by the delegate and also referred to in [19] of the lawyers’ submission. It may be noted, however, that the Tribunal, at [19] of its decision record, stated it had before it the Department’s file relating to the appellant and also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. At [21] the Tribunal also noted that the representative of the appellant did not attend the hearing “as it was noted in the ‘response to hearing invitation’”. It was that response to hearing invitation that included the lawyers’ submission. It may be taken from all this that the Tribunal had before it the appellant’s claim about the sexual assault around Christmas 2000, even though it was not the subject of any examination or discussion at the hearing.

41    In light of its findings, the Tribunal was not satisfied that the appellant has a well-founded fear of persecution on any of the Convention grounds if she were to return to China now or in the reasonably foreseeable future and as a result she was not a refugee as defined.

judicial review in the federal magistrates court

42    The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court, pursuant to Pt 8 of the Migration Act, which application was dismissed: SZQXV v Minister for Immigration and Citizenship [2012] FMCA 389.

43    As his Honour noted, the application to the Federal Magistrates Court was in bare terms, namely:

1.    The Tribunal made a jurisdictional error by incorrectly considering my practice of my religion in Australia.

2.    RRT member rejects my true story as fabrication.

3.    Denial of natural justice I am not agree the decision which from the RRT.

44    His Honour noted, at [30], however, that before the Court the appellant made complaints that could be grouped as follows:

(1)    The Tribunal’s decision as “unfair”.

(2)    At the hearing the Tribunal member did not “look fairly” at her case and did not appear to listen to her.

(3)    The Tribunal’s decision was based on the member’s subjective opinion about the situation in China. In particular the Tribunal relied an “opinion” by a “professor” about “country circumstances”.

(4)    The Tribunal used its “subjective opinion” to assess her Christian faith.

45    After a general discussion of various difficulties facing the appellant in relation to prosecuting these issues on a judicial review application, his Honour also noted, at [45], that he had raised at the hearing the reference in the delegate’s decision record to the appellant having made a claim that she had been sexually assaulted in China by unknown men. His Honour had earlier in his reasons, at [10], noted the detail of this claim. He there, however, noted that:

This does not appear in either of the applicant’s two written statements, both of which are in evidence before the Court in the Court Book.

46    At [46], his Honour again noted that the Tribunal’s otherwise extensive decision record made no reference to any such claim. His Honour noted that:

It is the case that a failure to deal with a claim, or an aspect of a claim, expressly made or clearly arising from the circumstances presented may lead to jurisdictional error (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1). It is not clear whether, if made by the applicant, such a statement constitutes a claim or aspect of a claim, or a piece of evidence in support of her claims to have been seriously harmed in the past.

47    His Honour then observed, at [47], that the reference in the delegate’s long list was the only reference in the evidence before the Court. Neither of the appellant’s written statements to the delegate made any reference to it whatsoever. Nor was there any mention in those parts of the delegate’s references to the interview.

48    At [48], his Honour added that, importantly, there was nothing in the Tribunal’s account of the hearing (the only account before the Court) to say that the appellant pressed or raised any such incident. Nor, equally importantly, did the appellant make any complaint to the Court that the Tribunal overlooked or ignored the matter.

49    In all of those circumstances, his Honour concluded, at [49], that the reference to the sexual assault at Christmas 2000 in the delegate’s decision record was “some mistaken reference”. In those circumstances, his Honour said he did not find that the Tribunal overlooked such aspect of the appellant’s claims.

50    His Honour then dealt with each of the specific formal grounds of appeal, having generally made observations about the matters apparently raised by them.

51    The Federal Magistrate first dismissed ground 1 of the application which asserted jurisdictional error on the basis that the Tribunal had “incorrectly considered” her claims.

52    The Federal Magistrate also dismissed ground 2 by which the appellant complained that the Tribunal had rejected her “true story” as a fabrication. His Honour considered that this ground merely invited the Court to engage in impermissible merits review. In relation to this second ground, his Honour, at [59], accepted that the decision record of the Tribunal exhibited some hallmarks of what he described as the “pop quiz” approach to ascertaining religious faith – obviously a reference to the questions put to ascertain the appellant’s ability to recite the Lord’s Prayer, the Ten Commandments, miracles, sacraments and the like, as well as knowledge of the rosary prayer. His Honour accepted that this approach may cause a decision-maker to cross the line between applying an “arbitrary standard” of knowledge of religious doctrine and concluding, after exploring a matter, that a particular applicant’s lack of knowledge indicates that the applicant is not a genuine adherent of a religion, but that no such jurisdictional error was evident in this case.

53    His Honour also rejected a third ground of judicial review that alleged denial of natural justice.

appeal to this court

54    The appellant then appealed to this Court against the decision of the Federal Magistrates Court. Her initial notice of appeal stated one single ground, which, in effect, replicated ground 2 of the application in the Court below, namely:

The Court made a wrong judgment on my credibility.

55    When the appeal first came on for hearing, the appellant was self-represented. The Court on that occasion raised with counsel for the Minister a number of factual issues relating to the Tribunal hearing that appeared to be raised by the findings made. As a result of these queries, the Minister, acting as a model litigant, put on further affidavit material responding to those queries and including, for example, relevant transcript of the hearing in the Tribunal. As a result of the provision of this material the Court identified a number of issues.

56    Subsequently, the appellant obtained legal aid and was represented in the appeal by solicitors and counsel. As a result, at the adjourned hearing of the appeal, held on 14 February 2013, the appellant moved to amend the notice of appeal, in order to advance the following three grounds of appeal (none of which raised the issues previously raised by the Court):

1.    Nicholls FM erred in holding (at [49] of his Honour’s reasons for decision) that the Refugee Review Tribunal (‘RRT’) had not committed jurisdictional error, as it had not overlooked an aspect of the applicant’s claim, being the Appellant’s claim that she had been sexually assaulted in about Christmas 2000.

2.    In the alternative to (1), Nicholls FM erred in failing to hold that the RRT committed a jurisdictional error insofar as it failed to deal with a claim, or an aspect of a claim – being the Appellant’s claim that she had been sexually assaulted in about Christmas 2000 – which had been expressly made and clearly arose from the material before the RRT.

3.    Nicholls FM erred in finding (at [49] of his reasons for decision) that the delegate’s reference to the sexual assault claim was a ‘mistaken’ reference.

57    The Minister opposed the granting of leave to amend the notice of appeal in this way but proposed and accepted that the Court should consider the merits of the claim in the process of deciding whether or not leave to amend should be granted.

discussion

58    It is recognised by the parties that while there are three new grounds of appeal, they essentially relate to the one sexual assault allegation initially noted in the summary of claims in the delegate’s decision record.

59    So far as the new grounds are concerned, while the Minister in written submissions appeared to take some issue with them being raised at this point of the appeal, in the event, that point was not pressed.

60    Rather, the approach of the Minister, commendably, was to say that once argument on the proposed grounds is heard it will be apparent that they are so weak that leave should be refused and the appeal dismissed.

61    The first point that should be dealt with is the finding of his Honour that the delegate’s reference to the sexual assault claim was a “mistaken” reference. The Minister submits that there is insufficient evidence for the Court to overturn his Honour’s finding in this regard.

62    In my view, his Honour was at error in this regard. Insufficient attention was paid to the sequence of events and the terms of the delegate’s decision record. It is apparent that, while the claim attached to the protection visa application and then confirmed in identical terms in a fresh statement prepared by the appellant’s lawyers and provided to the delegate do not make any claim about such a sexual assault, it obviously was advanced during the interview with the delegate.

63    The delegate invited the appellant to attend the interview. She attended an interview. If one reads the summary of claims made in the delegate’s decision record, the statement of the Christmas 2000 sexual assault claim follows sequentially from the two preceding events in late 2000, namely the house Church meeting event and the assault on the husband event.

64    There is nothing in the textual account of the sexual assault allegation as set out in the delegate’s decision record to suggest that the decision record itself was some proforma document or template of some other, unrelated decision in which that allegation had appeared. The point of the allegation is that the appellant was making it clear that the men who assaulted her, then telephoned her husband to tell him what had happened, were connected with the government official’s attempts to acquire the business. She was making the point to the delegate that she had not wanted to tell anyone, including police about the incident. It may reasonably be surmised that she felt that she could confide in the delegate the details of this particular claimed event.

65    There are also indications in the delegate’s decision record of other information that was provided to the delegate at interview that was not provided in the earlier statement accompanying the protection visa application. For example, in the penultimate summary claim the delegate recorded that “last month, one of her Church members named … was detained by police”. That was obviously recent information provided at the time of the interview.

66    In all of these circumstances, I am of the view that his Honour erred in concluding that the reference in the decision record of the delegate to the sexual assault at Christmas 2000 was a mistaken reference.

67    Indeed, the reference to that sexual assault was picked up and repeated, as noted above, in the lawyers’ submission to the Tribunal. In the circumstances, there is no reason to consider this was unintentional.

68    While it is clear enough that the sexual assault allegation was not repeated in the course of the hearing in the Tribunal, and was not the subject of any questions by the Tribunal (which professed to have read the Departmental file and the delegate’s decision record (and the lawyers’ submission)) that does not in the circumstances detract from the finding I now make. The question rather is what is the significance of the factual error made by his Honour. To put that another way, the question is, if the Tribunal failed to regard that factual claim, does that bespeak jurisdictional error on the part of the Tribunal?

69    In that regard his Honour in the Court below recognised the potential for jurisdictional error when he observed, at [46] of his reasons, that a failure to deal with a claim or an aspect of a claim expressly made or clearly arising from the circumstances presented may lead to jurisdictional error, and referred to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (Applicant WAEE) and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE). As his Honour noted the question is whether such a statement made by the protection visa applicant constitutes “a claim or an aspect of a claim”, or, on the other hand, “a piece of evidence” in support of her claims to have been seriously harmed in the past.

70    It should be observed at this point that by s 430(1) of the Act, where the Tribunal makes its decision on review it must prepare a written statement that:

(a)     sets out the decision of the Tribunal on the review; and

(b)     sets out the reasons for the decision; and

(c)     sets out the findings on any material questions of fact; and

(d)     refers to the evidence or any other material on which the findings of fact were based.

71    On the face of it, it might be contended that by failing to advert to the sexual assault claim, the Tribunal failed to set out a finding on a material question of fact. Unless it can be said that the question of fact involved is not material, there would be such a failure.

72    On behalf of the appellant, counsel submitted that the context in which the sexual assault was made, it was open to infer that the appellant was claiming that she was sexually assaulted because she was a Christian, that the assault followed relatively soon after the Church meeting and was connected with that Christian activity.

73    On another view, it might simply be said that the claim was related to the claimed attempts by the government official to unfairly gain control of the appellant’s husband’s factory business, a motivation that, as the Tribunal recorded, the appellant accepted was conduct not related to her Christianity or political opinion.

74    However, even if one takes the view that the question of fact was a material one in respect of which there should have been a finding, it is accepted that a breach of s 430 is not of itself proof of jurisdictional error. It still remains in any case to ascertain whether a particular non-compliance identifies jurisdictional error. See Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2001] HCA 1; (2001) 58 ALD 609 at [70] (McHugh J); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; and Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [46]-[47] (Kenny J).

75    It is also understood that the Tribunal is not by s 430 obliged in its decision record to refer to “every piece of evidence or material” that an applicant puts forward: see WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [35].

76    The Minister contends that the sexual assault allegation or claim is merely a piece of evidence going to appellant’s claims that she should be found to be an underground Catholic in China and who, if she were to return to China, is likely to be persecuted.

77    The appellant, however, submits that the Tribunal was required to deal with the claims raised by the material before it, including the sexual assault claim and in this regard refers to NABE at [58]. In that regard, the Tribunal was not entitled to disregard that claim which clearly arose on the material before it.

78    The appellant contends, however, the Tribunal did not deal with the sexual assault claim at all. On behalf of the appellant, it is submitted that a strong inference arises that the Tribunal overlooked the sexual assault claim in circumstances where it was an issue raised by the material advanced on behalf of the appellant and, if resolved one way, was likely to be dispositive of the review of the delegate’s decision. In this regard, the appellant relies on Applicant WAEE at [47]-[49].

79    Thus, the appellant submits that the failure to consider the question involved a constructive failure to exercise jurisdiction which in turn constituted jurisdictional error.

80    In my view, having regard to the discussion above as to whether or not the sexual allegation required a finding of a material fact, it is at least arguable that the claim put forward by or on behalf of the appellant at material times in the Tribunal, having regard to the delegate’s summary of the claims and the lawyer’s submission about the sexual assault, comprehended that she was sexually assaulted, at least in part, due to her adherence to underground Catholicism in China.

81    But the difficulty is that the claims that the appellant was an underground Catholic in China and would suffer persecution for her adherence to that religion if she were to return to China, were already plainly advanced and were plainly considered by the Tribunal. The sexual assault allegation did not advance a new claim.

82    Unlike the circumstances in a case such as Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, where the Full Federal Court upheld a claim that the Tribunal had failed to regard a claim advanced that the appellant might suffer persecution for a Convention related reason because he associated with “friends” of the Karen National Liberation Army, there is no separate or discrete additional claim here that it can be said the Tribunal failed to regard.

83    In truth what the Tribunal seems to have expressly failed to regard (and certainly did not make a material finding about) was whether the appellant was sexually assaulted as she claimed around Christmas 2000, by reason of her adherence to underground Catholicism in China or her imputed political beliefs, as well as because of the harassment being undertaken by the government official of her husband and herself in order to obtain control of her husband’s factory.

84    In my view, the failure of the Tribunal directly to address that factual issue in determining whether the appellant was an adherent to underground Catholicism in China or likely to suffer harm if she were to return to China for a Convention related reason was not a jurisdictional error. It cannot be said, for example, that the failure to regard that claim makes the Tribunal’s decision illogical, irrational or unreasonable in any relevant sense. It was a piece of evidence, along with many others that weighed on the decision the Tribunal needed to make. The fact that that piece of evidence was not regarded is insufficient, in my view, to constitute jurisdictional error.

85    If one could demonstrate that a relevant “piece of evidence” was a critical link in the decision-making process, or that if regard had been made to it the decision could well have been different, then a jurisdictional error argument may be advanced. Otherwise, the error is one of those that in another context would be treated as an error within jurisdiction, merely a factual error, not going to jurisdiction. See in this regard Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130] (Crennan and Bell JJ).

86    The judgments in SZMDS caution an appeal court, such as this, against being too quick to interfere where jurisdictional error is claimed. Gummow A-CJ and Kiefel J, at [40], stated that the “critical question” whether a determination was irrational, illogical and not based on findings or inferences of facts supported by logical grounds, should not receive an affirmative answer that is “lightly given”. Crennan and Bell JJ, at [130], said that: “a court should be slow, although not unwilling to interfere in an appropriate case”.

87    In this instance, I am not satisfied that the failure to regard the sexual assault allegation constitutes a failure to regard a jurisdictional fact for the purposes of s 65 of the Act. Thus, I do not consider the decision made by the Tribunal without express regard to that factual allegation as suffering from jurisdictional error.

88    In those circumstances, I do not consider that his Honour erred in the Court below when he found that in effect there was no jurisdictional error on account of the failure of the Tribunal to regard the sexual assault allegation.

conclusion and order

89    For the reasons given above, leave to amend the notice of appeal is refused and the appeal must be dismissed with costs.

Associate:

Dated:    25 February 2013