FEDERAL COURT OF AUSTRALIA

CRB17 v Minister for Immigration and Border Protection [2018] FCA 762

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of and incidental to the appeal as agreed or assessed.

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

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent, formerly known as the Minister for Immigration and Border Protection, but now known as the Minister for Home Affairs. The delegate refused the grant of Protection (Class XA) visas to the appellants.

2    The appellants are a married couple from the People’s Republic of China. The husband was the primary applicant for a protection visa, with his wife relying on his claims as a member of her husband’s family unit. The husband is the first appellant, and his wife is the second appellant.

Application for protection visas

3    On 23 August 2015, the appellants arrived in Australia on visitor sponsored family stream visas. On 18 November 2015, they applied for protection visas based upon claims as to religious persecution.

Before the delegate

4    On 2 June 2016, the appellants attended a departmental interview. On 21 June 2016, a delegate of the Minister refused the grant of protection visas. This decision was made largely because parts of the first appellant’s claims appeared to have been copied from a 2010 Falun Gong article, material inconsistencies regarding dates and events, and the vague and generalised details presented at the interview.

5    The delegate did not accept the claims made by the first appellant of attending underground churches, holding prayer meetings at his home, or that he was arrested and imprisoned. The delegate found that the first appellant was vague and inconsistent about his claimed interest in Christianity and had little knowledge about the basic beliefs of the religion. The delegate did not accept that he was a Christian. The delegate was not satisfied that the first appellant’s fear of persecution was for any of the reasons provided in s 5J(1)(a) of the Migration Act 1958 (Cth). The delegate concluded that the first appellant was not a refugee as defined in s 5H and that, accordingly, the criterion in s 36(2)(a) of the Migration Act was not satisfied. It followed that the same findings were reached as to the second appellant. Similar findings were made as to the absence of any basis for a claim of complementary protection.

Before the Tribunal

6    On 15 July 2016, the appellants applied for merits review of the delegate’s decision by the Administrative Appeals Tribunal. On 21 March 2017, the Tribunal wrote to the appellants to advise that the Tribunal was unable to make a favourable decision on the information before it. The Tribunal therefore invited them to appear at a hearing on 16 May 2017. The appellants did not appear at that hearing. The Tribunal satisfied itself that the necessary and appropriate notifications had been given.

7    The Tribunal found that the appellants were properly invited to the hearing in accordance with s 441A(5) of the Migration Act. The Tribunal considered the material that was before it in some detail. The Tribunal decided the review on the available information. The Tribunal found that, had the appellants attended the hearing, it would have asked the appellants for further details about their claims, and that would have been an opportunity for them to provide further information and details. The Tribunal’s reasons provided considerable detail as to the further details that would have been sought from the appellants had they attended the hearing: see [43(a)-(i)] of the Tribunal’s reasons. The Tribunal concluded as follows:

44.    Having considered all of the evidence before it, the Tribunal has concerns as to the reliability of [CRB17’s] and [CRC17’s] claims, including because of the issues raised above that the Tribunal would have discussed with [CRB17] and [CRC17] if they had attended the hearing. Further, if they had attended the hearing the Tribunal would have also sought information from [CRB17] and [CRC17] as to their involvement in Christianity in Australia and the delay in seeking Australia’s protection nearly three months after arriving.

45.    The Tribunal is not satisfied on the evidence before it that either [CRB17] or [CRC17] are Christian, that [CRB17] was arrested, detained and tortured as claimed or that either of them have experienced any harm in China. Nor is the Tribunal satisfied on the evidence that [CRB17] and [CRC17] have any involvement in Christianity in China or Australia.

46.    The Tribunal is therefore not satisfied that either [CRB17] or [CRC17] are persons who have a well-founded fear of persecution for any of the reasons set out in s.5J(1) in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. [CRB17] and [CRC17] are therefore not refugees within the meaning of s 5H of the Act.

47.    The Tribunal is therefore not satisfied that [CRB17] and [CRC17] are persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

8    The Tribunal also considered complementary protection, but was not satisfied that the appellants were persons in respect of whom Australia had protection obligations under s 36(2)(aa) of the Migration Act. The Tribunal affirmed the delegate’s decision not to grant the appellants protection visas.

9    On 14 June 2017, the appellants filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. The grounds of the application were as follows:

1.    The Tribunal did not accord the Applicant procedural fairness in that it did not give the Applicant a sufficient opportunity to give evidence, or make submissions, about what turned out to be the determinative issues arising in relation to the review.

Particulars

The Tribunal failed to put to the Applicant the following issues, which are crucial to its decision:

That it did not believe that the Applicant was a loyal Christian.

That it did not totally understand my statement on the Tribunal.

That the AAT staff’s attitude is so aggressive.

That the AAT interpreter translated not clear sometimes.

1.    Although I have submitted so many materials, AAT still did not believe I am a loyal Christian. For example, I stated that I preferred to live in Australia with my wife and child. If I return to China, I will be harmed, because I know the other Christians has been harmed by Chinese government. However, maybe not at the beginning when I come back to China. Because of this, AAT doubted that I was not a loyal Christian, which was completely without reason. I am telling the truth.

2.    The AAT staff is so aggressive, which caused that I could not answer the questions freely. For example, I refused the AAT staff to contact my wife, because my wife is busy in taking care of my baby. The officer agreed finally, but aggressive. Even worse, AAT doubt what I said.

3.    The interpreter in AAT translated not clearly, and I could not understand her sometimes. In addition, in the AAT refuse letter I found some mistakes. For example, I came from ZHEJIANG Province but ZHEJIAN province in the letter. I could not believe their work attitude.

10    The application for judicial review was heard by the primary judge on 17 November 2017. His Honour dismissed the application, giving reasons ex tempore the same day. The primary judge’s reasons are concise, but comprehensive. In particular, his Honour summarised the process before the Federal Circuit Court and the substance of the issues before his Honour as follows:

18.    Despite the orders made on 8 August, 2017 permitting the applicants to file an amended application setting out any amended grounds of review with particulars by 26 September, 2017 nothing has been filed. At the hearing before me, the second applicant appeared in the first instance without the first applicant. She told me that he was not present because he was suffering from back pain. I indicated to the second applicant that the first applicant ought to be here and that in the event that he did not attend the hearing it might be that his application would be dismissed. She also told me that their “solicitor” had filed some documents when I asked her whether there was an outline of submissions, but she could not produce a copy of any documents that have been provided by the solicitor. There is no solicitor on the record for the applicants. There never has been.

19.    The hearing was adjourned for a couple of hours to enable the first applicant to attend. The first applicant attended at the adjourned time and he explained that the documents in this case were prepared by a “friend”. The second applicant added that they had paid some money to this person. The first applicant said that he did not really understand what the case was about.

20.    Referring then, to the application for review and the grounds contained within it, the first contends that the first applicant was not given a sufficient opportunity to give evidence, or make submissions, about the determinative issues in the review. However, that is simply not so.

21.    On 19 July, 2016 the first applicant was invited by the Tribunal to provide any material or written arguments that the applicants might wish to put before the Tribunal as soon as possible.

22.    The dispositive issues in the review before the Tribunal were the same as those that arose on the delegate’s decision. The first applicant was entitled to assume that was so: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35].

23.    The Tribunal was under no obligation to put the applicants on notice of the issues on the review where those issues did not go beyond the issues that arose out of the delegate’s decision. By reason of the delegate’s decision, the applicants were on notice that the credibility of the first applicants’ claims was the determinative issue for the delegate and therefore would be the issue on the review from the delegate’s decision. The delegate did not accept that the applicant was a Christian, attended underground Churches, held prayer meetings at his house or had been arrested and imprisoned. Those matters were plainly issues on the review.

11    After reproducing the text of the Tribunal’s hearing invitation letter and, correctly, concluding that no breach of s 425 of the Migration Act had occurred, because the Tribunal had discharged the obligations cast upon it by Div 4 of Part 7 of the Migration Act, his Honour made the following salient observations:

26.    The other matters relied upon by the applicants cannot be made out on the material before me. They seem to be predicated on the basis that a hearing attended by the first applicant did in fact occur with the Tribunal. However, there was no hearing and so it is very difficult to understand how the matters complained of by the applicants can be established. The applicants themselves were unable to explain these matters to me.

27.    Further, the applicants were unable to explain what it was that they meant by the matters set out in paragraphs numbered 2 and 3 in the statement attached to their application for review. There was no questioning of any person and no “AAT interpreter” because there was no hearing at which the applicants attended. They were unable to identify the occasion on which it was said that the “AAT staff is so aggressive.” Moreover, the applicants were unable to explain the statement “For example, I came from ZHEJIANG Province but ZHEJIAN Province in the letter,” in their grounds of review when there was no reference at all to that Province in any of the material in this case.

28.    Having regard to those matters, I am not satisfied that the Tribunal’s decision in this matter is affected by jurisdictional error. I have otherwise considered the Tribunal’s decision as set out in its decision record. But there is nothing that suggests that the Tribunal’s decisions could be impugned for jurisdictional error.

12    For completeness, the primary judge also addressed the issue of legal unreasonableness which was quite properly raised by the Minister. In particular, his Honour distinguished a prior decision of North ACJ in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; 244 FCR 144 and the decision of the Full Court in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; 248 FCR 1. In each of those cases it was found that it had been legally unreasonable for the Tribunal to proceed with a hearing in the absence of the merits review applicants because circumstances existed that might have indicated to the Tribunal that the applicants in those cases intended to pursue their merits review applications. The primary judge accepted the Minister’s submission that this was not a case where, for example, “elementary common sense demanded that the Tribunal at least attempt to phone the [applicant] on the mobile number it had in its records”. His Honour accepted that it was not incumbent on the Tribunal to telephone every applicant who does not appear at a hearing under s 426A the Migration Act. His Honour had regard to the following observations of Mortimer J in MZALO v Minister for Immigration and Border Protection [2016] FCA 1339 at [24] as being apposite:

This is not a case where there had been a pattern of close contact with the Tribunal such that it was reasonable to expect the Tribunal to take the short and simple step of making a phone call to the appellant to see why she had not attended the hearing. This was not a case where the appellant’s previous behaviour in relation to her review suggested a close and vital interest in its conduct, and suggested that failure to attend a Tribunal hearing was not the result of a conscious decision and was, instead, out of character: cf. my decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915; 236 FCR 393.

13    The primary judge concluded that, having regard to the Tribunal’s reasons for proceeding in the absence of the appellants, it could not be said that the decision to do so was legally unreasonable. His Honour found that there was no jurisdictional error demonstrated by the grounds of review or otherwise apparent in the Tribunal’s decision.

Before the Federal Circuit Court

14    On 6 December 2017, the appellants lodged a notice of appeal from the Federal Circuit Court, dated 4 December 2017. The grounds of appeal were as follows:

1.    The AAT did not identify the potential harm taken by Chinese Government.

2.    AATT has denied all the supporting documents provided by me which is not the finding of a fact, and they confused me a lot.

3.    The Tribunal hided the question of the persecution I will face if return China. Their working attitude is so terrible.

15    The written submissions for the Minister pointed out that none of those grounds of appeal reflect points that were raised in the court below. The Minister’s submissions also pointed out that no submission had been made as to why it was expedient or in the interests of justice to allow new grounds of review to be run for the first time on appeal.

16    The Minister’s submissions were read to the appellants prior to the appeal being called on for hearing. During the course of the hearing the appellants were invited to make any submissions that they wished to in support of their appeal. The appellants appeared in person and were not legally represented. It is not surprising that they had difficulty formulating any meaningful submissions.

17    Each of the appellants did address me, briefly. The second appellant acknowledged that there were some inconsistencies in the claims that had been made. She said that there was no justice in China. She said that they had relied upon their friends. She referred to Australia’s respect for human rights. The first appellant also referred to Australia’s human rights’ record. He asked for another chance and expressed fears about going back to China. The second appellant also expressed fear about being returned to China. All of these submissions, essentially, went no further than re-asserting the merits of their claim for protection visas.

18    There was no suggestion of any error, let alone jurisdictional error, by the delegate or by the Tribunal. No error on the part of the primary judge was referred to. The Minister submitted in writing, without the need for any further oral submissions, that leave to rely upon the new grounds of review and the notice of appeal should be refused for the following reasons:

(1)    The grounds have insufficient prospects of success to warrant the exercise of this Court’s discretion to grant leave to rely upon them.

(2)    All three grounds seek to have this Court review the decision of the Tribunal without asserting any error on the part of the primary judge. This ignores the fact that this Court does not exercise original jurisdiction in migration matters by reason of s 476A of the Migration Act, by which the original jurisdiction is expressly limited and can only be exercised “if and only if” certain statutory criteria are met. None of those criteria are engaged in this case. Numerous authorities support the proposition that an appeal to this Court should not be taken as an occasion to reconsider the Tribunal’s reasons, as distinct from considering the primary judge’s reasons, citing SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6]-[8]; CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [13]-[14]; and DPE16 v Minister for Immigration and Border Protection [2018] FCA 61 at [11].

19    The Minister’s submissions should be accepted and leave to rely upon any of the grounds of appeal in the notice of appeal should be refused.

20    For completeness, the written submissions for the Minister also addressed the grounds of appeal, beneficially treating them as contending that the primary judge had erred in not finding that the Tribunal committed jurisdictional error in the respects identified. For completeness, those grounds should be briefly addressed in case the decision to refuse leave is incorrect.

21    As to grounds 1 and 3, asserting that the Tribunal did not identify the potential harm from the Chinese government, that the Tribunal hid the question of the persecution the first appellant would face if returned to China and that the Tribunal’s “working attitude is so terrible”, the Minister submitted that the Tribunal clearly considered the appellant’s claims and the evidence provided in support of those claims and nothing more was now being sought than impermissible merits review. In particular, the Minister submitted, the Tribunal considered the appellants’ claims that the first appellant was arrested, detained and tortured by Chinese authorities, but had concerns about the reliability of that evidence. The Tribunal indicated that, had the appellants appeared at the hearing, questions would have been asked about the differing accounts as to the arrest of the first appellant, as to how many meetings had taken place and the incongruity between the appellants’ statements in relation to the period between the time when the first appellant was arrested and when he departed from Australia, as well as their lack of knowledge about their claimed religion and the fact that their statement in support of the protection visa application appeared to be copied directly from another article. The Minister submitted that, in circumstances where the appellants did not avail themselves of the opportunity to attend a hearing and give further evidence, the Tribunal was entitled not to be satisfied that the appellants were Christians, that the first appellant had been arrested and tortured or that either appellant had experienced harm in China. The Minister submitted that the Tribunal made findings open to it on the evidence before it for the reasons given. No jurisdictional error arose, nor any appellable error on the part of the primary judge.

22    The submissions for the Minister must be accepted. Even if leave had been granted to rely upon grounds 1 and 3, those grounds would have failed.

23    As to ground 2, which complains about the Tribunal not accepting the supporting documents which had been provided to the delegate, the Minister submitted that this ground sought to cavil with the weight given by the Tribunal to those documents. The Minister submitted that it was well established that it was for the Tribunal to identify such material as it finds relevant to its reasoning and to give it appropriate weight, citing Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593. Again, those submissions should be accepted.

24    It follows that all of the grounds of appeal sought to be relied upon by the appellants, had they been permitted to be relied upon, would have failed. In any event, leave not having been granted, the appeal must be dismissed.

Conclusion

25    The appeal must be dismissed. The appellants must pay the Minister’s costs.

Associate:

Dated:    25 May 2018