FEDERAL COURT OF AUSTRALIA

ATO17 v Minister for Immigration and Border Protection [2018] FCA 855

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

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 a protection visa to the appellant.

2    The appellant is from the People’s Republic of China. He arrived in Australia on 29 March 2008 on a student visa that was valid until 14 May 2010. He went back to China on 12 October 2009, and returned to Australia on 3 November 2009. He obtained a further student visa that was valid until 4 May 2011. He then remained unlawfully in Australia from 20 May 2011 until he applied for a protection visa on 21 May 2014, being over six years after he first came here.

Before the delegate

3    The appellant attended a protection visa interview on 14 April 2015, accompanied by a registered migration agent. His original claims were made in a statement accompanying his protection visa application that was dated 12 May 2014. The totality of his claims at that time were summarised by the Minister’s delegate in the decision record by which the grant of the protection visa was refused, as follows:

1.    In 2005 he helped his father prepare a report on corruption involving local government officials;

2.    The report was sent to local media and the Provincial Government: the officials involved threatened to kill the applicant;

3.    His father’s dispute with the local government prevented the applicant from joining the army after graduation in 2007: he knew this because he received a false medical report;

4.    The officials wanted to kill the applicant because he was instrumental in preparing the report of corruption;

5.    His father obtained a passport for him through bribery which was necessary as his family history was known – his passport was not cancelled because the dispute was between his father and corrupt officials rather than the government itself;

6.    He denied he can escape persecution if he gives up the dispute as he is now known to the corrupt officials;

7.    When asked why he could not relocate outside his home area he stated that corrupt officials have been promoted all the way up to the national government and so they can find and harm him anywhere;

8.    In 2006 he applied twice to study in the UK but was refused – he did not apply elsewhere until his application to Australia in early 2008: he said he did not realise at the time that his life was in danger;

9.    He did realise it was in danger at the time he arrived in Australia in March 2008 but he did not apply for protection as he was studying and hoped to be able to return to China later;

10.    When he finished study and became unlawful in May 2011 he did not approach the department or apply for protection as he was considering what to do – he undertook part-time work to survive;

11.    He decided to apply for protection in May 2014 because his father had recently been detained for a month;

12.    When asked if he had anything further, he said that he did not.

4    On 20 April 2015, the delegate refused the grant of a protection visa, finding that the claims made by the appellant had been fabricated to support his application.

Before the Tribunal

5    On 22 April 2015, the appellant applied to the Tribunal for merits review of the delegate’s decision. On 1 November 2016, he was invited to a hearing to take place on 13 January 2017, and was asked to provide a written submission containing all of his claims by 6 January 2017. On 5 January 2017, the appellant’s migration agent provided nine further documents in support of his review application. A further two documents were provided by his migration agent on 10 January 2017.

6    The appellant attended the Tribunal hearing with his migration agent on 13 January 2017. The agent was given until 20 January 2017 to provide any further information, comments or responses.

7    On 27 January 2017, the Tribunal affirmed the delegate’s decision. The Tribunal was not satisfied that the appellant’s evidence was truthful or credible. The Tribunal’s reasons for reaching that conclusion are detailed, thorough and comprehensive, being in total some 12 pages and 74 paragraphs. The aspects of those reasons that were challenged in the Federal Circuit Court proceedings are addressed below.

8    The Tribunal was not satisfied that the appellant’s claims, either individually or cumulatively, demonstrated that he had a well-founded fear of persecution. The Tribunal further concluded that there were no substantial grounds for believing that there was any real risk of the appellant suffering significant harm if he returned to China.

Before the primary judge

9    By an amended application for judicial review of the Tribunal’s decision, the appellant asserted:

1.    The Tribunal’s findings and reasons were unreasonable

PARTICULARS

a.    The Tribunal’s reasons and findings lacked an evident and intelligible justification.

b.    The Tribunal’s reasons and findings were arbitrary or capricious or abandoned common sense.

2.    The Tribunal failed to carry out its statutory duty

PARTICULARS

a.

i. The Tribunal relied upon the interview that the Applicant had with the Department of Immigration and Border Protection.

ii. The Tribunal failed to comply with the Migration Act 1958 s 424A

3.    The Tribunal failed to consider all integers of the Applicants claim

PARTICULARS

a.    The Tribunal identified the Applicants activities in China but failed to consider what would happen if he returned to China and resumed those activities.

10    The transcript of the hearing before the Tribunal was in evidence before the primary judge.

11    The primary judge dealt with the judicial review grounds in a summary and frankly inadequate way in an ex tempore judgment, delivered on the day of the hearing before his Honour on 19 October 2017, as follows (emphasis in original):

Ground 1

23.    In relation to ground 1, Mr Turner took the Court to paragraph 56, 62, 64, 65 and 67 of the Tribunal’s decision submitting that the findings that the Tribunal referred to in those paragraphs were unreasonable and lacked an evidence and intelligible justification. None of the adverse findings identified by the Tribunal were illogical or unreasonable. The Tribunal’s reasons are not to be read with a keen eye for error and are to be read as a whole. This is a case where there were serious adverse credibility findings made against the applicant and the adverse findings in relation to the applicant were open for the reasons given of the Tribunal.

24.    Mr Turner also submitted that the finding in relation to complementary protection was unreasonable and that the Tribunal had failed to properly conduct its statutory task. It is apparent on a fair reading of the Tribunal’s reasons that the Tribunal took into account its earlier findings in determining whether or not the applicant was the person in respect of whom Australia owed protection obligations on the grounds of complementary protection. That was a legitimate course for the Tribunal to follow. Further, it is apparent from the Tribunal’s reasons that the Tribunal took into account both the real chance and real risk test in assessing the applicant’s claim which involved an assessment of both the refugee claim and the complementary protection claim. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

25.    In relation to ground 2, Mr Turner took the Court to paragraph 50 of the Tribunal’s reasons submitted that the reference to what was not included in the applicant’s written statement or during the Departmental interview constituted information enlivening an obligation under s424A of the Act. The reasoning by the Tribunal in relation to matters of credibility arising from omission and the matters identified are not information enlivening an obligation under s 424A of the Act. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

26.    In relation to ground 3, Mr Turner argued that the Tribunal had failed to consider an integer of the applicant’s claim being the proposition that the applicant would continue to engage in activities assisting his father effectively in protests if he was returned to China. No such claim was made on the material before the Tribunal. No such claim fairly arose in the material.

27.    Mr Turner took the Court to pages 12, 19, 21, 23, 39 and 43 of the transcript. I do not accept that those parts of the transcript support any such claim as fairly arising on the material before the Tribunal. Further, this is a case where the Tribunal made comprehensive adverse credibility findings in relation to the applicant’s claims as to his father’s alleged political activities and in relation to the applicant’s claims, those adverse findings were open.

28.    Insofar as it could be said that there was a claim that the applicant may engage in advancing political activities on return to China, any such claim was subsumed within the adverse findings made by the Tribunal. No jurisdictional error is made out by ground 3.

29.    The amended application is dismissed.

12    Limited assistance is to be gained from the primary judge’s somewhat perfunctory statement of conclusions, given that what was stated fell short of being proper reasons. The real work in relation to the appellant’s case must be done for the first time on appeal, including by way of interpretation of what his Honour meant, in order to ascertain whether or not his Honour erred. As will be seen, taken at face value, there was room to find error in certain of the conclusions his Honour reached, absent considerable effort being deployed to justify the conclusions reached. That is, the necessary judicial effort has been left to this Court.

13    It is tempting to remit the matter so that proper reasons can be given. However, that would probably require a rehearing before a differently constituted bench of the Federal Circuit Court, which is an unacceptable waste of that Court’s resources. The better course in all the circumstances is to examine closely the conclusions the primary judge reached in order to see if error is established.

Appeal to this Court

14    By a notice of appeal filed on 9 November 2017, the appellant advances the following grounds of appeal:

Grounds of appeal

1.    The Court applied the wrong test.

Particulars

a.    The Court looked at whether the findings of the Tribunal were open to it.

b.    The proper test was whether the findings of the Tribunal were legally unreasonable in that there was no evident or intelligible justification for the decision.

c.    The Court failed to accept that evident omissions and differences between statements were “information” for the purposes of the Migration Act 1958 s. 424A.

2.    The Court failed to carry out its judicial duty.

Particulars

a.    The Court relied upon “serious credibility findings of the Tribunal” to dismiss the Appellant’s claims that an in [sic] integer of his claim was not considered by the Tribunal.

b.    The Court relied heavily upon the “serious adverse credibility findings” of the Tribunal instead of considering whether such findings had a proper basis.

c.    By simply hearing from the Applicant and proceeding to an ex tempore judgment it can reasonably be inferred that the Court had pre-determined its decision.

15    At the hearing of the appeal, the appellant’s solicitor, quite properly, abandoned ground 2(c) concerning the primary judge delivering an ex tempore judgment, but did not abandon the complaints made about the conclusions his Honour reached. A subsidiary argument that his Honour had inadequately dealt with the Tribunal’s treatment of complementary protection was also not pressed, as it was not needed if the primary arguments succeeded and could not be sustained if those arguments did not prevail.

16    The substance of the grounds of appeal may be seen to address points that were taken before the primary judge, ensuring that the appeal concerns what his Honour decided, and only collaterally what the Tribunal decided.

17    Appeal ground 1 is divided into two parts:

(1)    an assertion that the primary judge was not permitted to make a finding that a conclusion reached by the Tribunal was open to it, but, rather, that his Honour was obliged to use a particular formulation of words derived from appeal decisions, namely as to whether the Tribunal’s findings were legally unreasonable because there was no evident or intelligible justification for the decision. The substance, rather than form, of this ground was that the primary judge erred in not accepting that the Tribunal’s rejection of particular aspects of the appellant’s case was infected by legal unreasonableness, as detailed below; and

(2)    an assertion that the primary judge erred in not accepting that evident omissions and differences between statements made by the appellant were “information” for the purposes of s 424A of the Migration Act 1958 (Cth).

18    Appeal ground 2 is in the nature of a further argument built upon an aspect of the first part of ground 1. It contests the primary judge’s finding in the alternative at [28], reproduced at [11] above, that, even if a claim had been made by the appellant as to harm arising from future activities if he returned to China, this claim was addressed by being subsumed within other, more general, adverse findings made by the Tribunal. This ground therefore depends upon this Court finding that such a claim was made in the first place.

Legal unreasonableness (ground 1(a) and (b))

Reliance upon adverse credibility findings (ground 2(a) and (b))

19    The submissions for the appellant commenced by referring to the following formulations for legal unreasonableness:

(1)    in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; 248 FCR 1 at [38] and in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44], it was said that a decision is legally unreasonable if there is no “evident and intelligible justification” for it; and

(2)    in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, French CJ said at [25] (footnotes omitted):

As Professor Galligan wrote in 1986 in Discretionary Powers: A Legal Study of Offıcial Discretion, the requirement that officials exercising discretion comply with the canons of rationality means, inter alia, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power. Those canons also attract requirements of impartiality and “a certain continuity and consistency in making decisions”. They were reflected in the powers of the English Court of Chancery to control public bodies “if they proceed to exercise their powers in an unreasonable manner; whether induced to do so from improper motives or from error of judgment”. They were acknowledged in the earliest years of this Court.

20    It may be that the appellant intended to rely instead or as well upon French CJ’s observations in Li at [28], as follows (footnotes omitted):

Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it”. In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

21    The appellant’s arguments in relation to legal unreasonableness take issue with, or rely upon, the following paragraphs of the Tribunal’s reasons:

62.    Similarly, the Tribunal finds it implausible that the applicant’s brother-in-law was assassinated. The evidence before the Tribunal indicates that the applicant’s brother-in-law died of an anterior mediastinal tumour in a hospital in Hong Kong. Whilst the Tribunal is prepared to accept that he had been planning to travel to Australia, the Tribunal finds it implausible that the Chinese authorities contrived his death owing to a concern that he may convey sensitive documents to the applicant. The Tribunal also finds it implausible that if the applicant’s phone calls to his brother-in-law were being monitored, Chinese security officials would allow a computerised voice to tell the applicant that his phone call was being recorded.

…

64.    The applicant’s claims regarding the arrest of his father in 2011 and 2014 are not supported by the documentary evidence. Although the applicant has provided evidence that the applicant’s father was arrested and briefly detained in 2011, the documents before the Tribunal suggest that this was owing to an altercation between the applicant’s father and another person engaged in road widening work. The applicant has no documentary evidence to support his claim that his father was arrested and detained for more than one month in 2014.

65.    The applicant’s evidence regarding the circumstances in which his father was released in 2014 also appeared to the Tribunal to be implausible. The applicant told the Tribunal that he had set up a rescue team and had threatened to go public with sensitive documents in his possession until his father was released. The applicant was unable, however, to provide clear evidence as to the nature of the sensitive documents reportedly in his possession. None of the documents before the Tribunal appear to be particularly sensitive and some of them are clearly already in the public domain. The Tribunal finds it implausible that the applicant’s father’s friend would convey the applicant’s threat to the Chinese authorities without suffering any consequences himself. As put to the applicant at hearing, the Tribunal also finds it highly problematic that this claim was not raised in the applicant’s written statement given the significance the applicant attached to this circumstance in his oral evidence.

…

67.    The applicant claimed in his written statement that his father had to go into hiding as a consequence of the government’s persecution of him and his family. This claim is contrasted, however, with the applicant’s oral evidence that his mother and sister have moved to Hong Kong whilst the applicant’s father remains in the same province in China. The Tribunal also found the applicant’s evidence regarding his father’s employment circumstances to be evasive. The applicant initially told the Tribunal that his father was an ordinary farmer. Only once the Tribunal questioned the applicant’s ability to fund a three-year course of study as an international student in Australia did the applicant reveal that his father also ran a petrol station.

…

72.     The Tribunal further finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22    The appellant’s submissions assert that the aspects of the Tribunal’s reasons discussed below lacked an evident and intelligible justification and/or were arbitrary or capricious or lacked common sense.

Asserted legally unreasonable failure to consider the appellant’s claim that he would resume activist activities upon his return to China and asserted error in relying on adverse credibility findings of Tribunal

23    This is not really a legal unreasonableness point, but, rather, a point raising an assertion of a failure to consider a claim or integer of a claim. The Minister does not take any technical point in this regard, but instead properly focuses on the substance of the argument.

24    The Tribunal said the following at [56]:

Having regard to the corroborative documentary evidence, the Tribunal is prepared to accept that the applicant’s father has a history of protesting or making complaints about local social, environmental and political issues. In particular, the Tribunal is prepared to accept that the applicant’s father was involved in making complaints about [a particular quarry] as well as the allegedly corrupt behaviour of town officials in around 2005 and 2006. The Tribunal is prepared to accept that the applicant’s father spoke to the media with regard to his concerns about the [quarry]. The Tribunal is also prepared to accept that the applicant took some interest in his father’s activities and may have played some role in helping him to compile information about the quarry, such as taking photographs, and that this information was later used in at least one newspaper article. The Tribunal is not satisfied, however, that the applicant’s other claims are credible.

25    The appellant argues that, following the Tribunal’s acceptance at [56] that the appellant took some interest in his father’s activities and may have played some role in helping to compile information about a disputed quarry development, such as by taking photographs, and that this information was later used in at least one newspaper article, the Tribunal failed to go on and consider what would happen to the appellant if he returned to China and resumed these activities. The appellant asserts that that was a claim he made at various points during the Tribunal hearing. This is said to have constituted a failure by the Tribunal to consider all of the integers of the appellant’s claim.

26    The passages of the Tribunal hearing transcript that the appellant relies upon are as follows (passages that are relied upon as making the claim are emphasised below):

Q84.    But Australia will only owe you protection obligations if there’s no part of China in which you can safely live, and it seems to me that you were able to safely live in China. The evidence in your form suggests you were studying in [a city] and that you were living in [a county], and you – and apart from being denied entry to the army, you’ve not claimed to have had any particular problems.

A.    Yes. I’m here, like – and I’m not saying, like, even like before from 2008, or even in 2000 – like I already been here, like, for – like the – a couple of years, like on 2010, or before – even before my – my brother-in-law come to Australia to give me all these, like, the original files. I’m not – not saying, like, before that time, I – I thought I’m a refugee in Australia. What I’m saying is because after 2014, right, from the rescue things – from the things what I try, like, and rescue my dad, but the other – like, arrest by the government, then often that is – turn myself to him, I’m going to – against the governments.

...

Q91.    O.K. All right. So again, if I accept that your father was arrested and detained in 2014 for one month, why does that mean that you would be arrested or detained or harmed in any other way if you were to go back to China?

A.    Now, the turning points is how we get my – my father out of – from the gaol, because I just, like, tell my father’s – the – like, the – we set up, like, a rescue team, right, by my family’s – by the dentist, my father’s friend, I just let these to have information to the governments, if they keep going, like, do these bad things to my father, I go in, like, to like, the public all the documents I got in my hands, and I will show them, and that’s the reason why my dad cannot do this. So at least if I going back to China, right, like, going to take out all this stuff they put on me. And I also - - -

…

Q95.     - - - based on your evidence. But it’s not clear to me why you would have problems.

A.    But I tell, like, the government who, like, put my father in gaol, who want my father in gaol forever. I just tell them, if they just keep doing these bad things to my dad, right, I’m going to public all these bad things that they’ve done.

Q96.    Who did you tell and when?

A.    I just tell the – like, my father’s friend who is doing the rescue work to try to get my father out.

Q97.    O.K. So you haven’t told the government that you have documents?

A.    No, because I don’t want, like, to make any call to the – directly to the government, no, and that’s impossible. I know – I can’t, like, have the conversation to them. So the only things I can do, I just, like, let my family members – let my father’s friends tell this information – pass this information to the government, then they knew what, like, going to happen if they keep, like, approaching my father, harassing my father. Was just to let them know they going to pay for it, because I going to public all this stuff, whatever I got.

…

Q99.    So you’re saying that if you went back now, you would start protesting or trying to expose corrupt practices?

A.    They already I know I got these documents. It’s bad for them. I don’t think they can – like, will give me any chance, give me survive if I back to China.

Q100.    And how do they know you have these documents?

A.    So I hope – I wish they don’t know. If they know, I don’t think I can make it today, could be - - -

Q101.    How would they know?

A.    Because when I rescue my father out from gaol, right, I already, like, let my father’s friends – they pass this message to the – to the governments, so they already know I’ve got something.

27    Each of those passages marked in bold may be seen to contain some reference to future events. The appellant contends that what was said in the passages of transcript reproduced above was sufficient to constitute a claim that had to be considered and addressed by the Tribunal. It is therefore contended by the appellant that the primary judge erred in concluding, at [26] to [27], that no such claim was made, and further erred by finding, at [28], that even if such a claim was made, it was subsumed in the more general adverse findings made by the Tribunal.

28    The Minister makes legal submissions at a conceptual level as to the content of the obligation to consider claims, and at a factual level as to the substance of what the appellant had said to the Tribunal. The Minister submits that, considered with the benefit of that analysis (which, it might be noted, was never conducted by the primary judge, or at least not referred to by his Honour), the primary judge did not err in the conclusions his Honour reached.

29    At a conceptual level, the Minister argues that the obligation of the Tribunal in relation to addressing claims was confined to those that were “expressly made or articulated, or clearly arose from established facts”. In support of that contention, the Minister relies, in chronological order, upon:

(1)    the Full Court decision in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136;

(2)    Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389; and

(3)    NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1.

30    In Htun at [42], Allsop J, with whom Spender J agreed, said, in a passage quoted in NABE at [57]:

The requirement to review the decision under s 414 of the 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 … 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 … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.

31    In Dranichnikov, it was found that a failure to “respond to a substantial, clearly articulated argument relying upon established facts” (see [24]) not only failed to afford natural justice (now more commonly referred to as procedural fairness), but, in the circumstances of that case, amounted to a jurisdictional error.

32    In NABE, the Full Court said at [63] and [68] the following:

63.     It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE (at [47]). But as the Full Court said in WAEE (at [45]):

If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.

…

68.     Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal…

33    It follows that the test proposed by the Minister accords with authority and must be accepted. The question is whether the comments made by the appellant meet the threshold of, or are akin to, having been “expressly made or articulated, or clearly arose from established facts”. In my opinion, they do not. Each comment made by the appellant was vague as to just what the appellant said he would do in the future, and any fears attendant upon such conduct taking place. It did not constitute a sufficient claim to require separate consideration by the Tribunal, as opposed to being part and parcel of the overall assessment of the appellant’s case.

34    It is difficult to attribute to his Honour the diligence of reading the passages carefully, observing the claims that were made, and finding that they fell short of requiring a specific response by the Tribunal at law. The better view is that whatever reading of the transcript was conducted, his Honour failed to detect the claim, albeit vague, that was, in fact, being made. It follows that his Honour reached the correct conclusion, but not by the application of principled reasoning. His Honour however cannot be said to be wrong in the conclusion he reached.

35    The process of deciding whether or not a sufficiently clear claim has been made is necessarily subjective. There is room for reasonable minds to differ, and for an error to be made by this Court in that assessment. It follows that it is prudent at this point to address the alternative issue raised by appeal ground 2, namely as to whether, if, contrary to the finding above, such a claim was made by the appellant, it was, as the primary judge found at [28], “subsumed within the adverse findings made by the Tribunal”. His Honour did not identify which adverse findings were being referred to. The appellant contends that the necessary consideration needed to go further than a general adverse credibility finding.

36    The Minister generously attributes the primary judge’s reference to “subsumed” at [28] to a passage from Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47], where it was said:

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.

37    The Minister also suggests that his Honour must have been referring to, amongst other passages, [70] of the Tribunal’s reasons to support the submission that any such claims as are found to have been made were adequately addressed in more general findings by the Tribunal. That paragraph of the Tribunal’s reasons needs to be read in the context of [64], [65] and [69] (noting that there is a separate challenge to [64] and [65], which is addressed below). Those four paragraphs of the Tribunal’s reasons were as follows:

64.    The applicant’s claims regarding the arrest of his father in 2011 and 2014 are not supported by the documentary evidence. Although the applicant has provided evidence that the applicant’s father was arrested and briefly detained in 2011, the documents before the Tribunal suggest that this was owing to an altercation between the applicant’s father and another person engaged in road widening work. The applicant has no documentary evidence to support his claim that his father was arrested and detained for more than one month in 2014.

65.    The applicant’s evidence regarding the circumstances in which his father was released in 2014 also appeared to the Tribunal to be implausible. The applicant told the Tribunal that he had set up a rescue team and had threatened to go public with sensitive documents in his possession unless his father was released. The applicant was unable, however, to provide clear evidence as to the nature of the sensitive documents reportedly in his possession. None of the documents before the Tribunal appear to be particularly sensitive and some of them are clearly already in the public domain. The Tribunal finds it implausible that the applicant’s father’s friend would convey the applicant’s threat to the Chinese authorities without suffering any consequences himself. As put to the applicant at hearing, the Tribunal also finds it highly problematic that this claim was not raised in the applicant’s written statement given the significance the applicant attached to this circumstance in his oral evidence.

…

69.    The Tribunal is also not satisfied that the Chinese authorities planned to kill the applicant’s father as he was in possession of sensitive materials in 2012. The Tribunal is not satisfied that the applicant’s father was arrested in 2014 and charged with illegal trading of national land. The Tribunal is not satisfied that the applicant’s father was detained and tortured for more than one month. The Tribunal is not satisfied that the applicant’s brother-in-law was in possession of sensitive documents or that he was assassinated. The Tribunal is not satisfied that documents were stolen during a break-in at the applicant’s brother-in-law’s home. The Tribunal is not satisfied that the applicant is in possession of any sensitive documents or that he has threatened to make such documents public. The Tribunal is not satisfied that the applicant’s phone calls have been monitored. The Tribunal is not satisfied that the applicant’s father is now, or has ever been, in hiding.

70.    Having made the findings above, the Tribunal has considered the applicant’s situation should he return to China now, or in the reasonably foreseeable future, the Tribunal is prepared to accept that the Chinese authorities have been known to treat those perceived as a threat to the stability and security of the Chinese state in a brutal manner as suggested by the video shown to the Tribunal at hearing. The Tribunal is not satisfied, however, that there is a real chance or a real risk of the applicant being treated in this way. Notwithstanding the applicant’s father’s low-level political activities, the Tribunal is not satisfied that the Chinese authorities, corrupt officials or any underworld figures have shown any interest in harming the applicant in the past. The Tribunal is not satisfied that anything has occurred in the eight years since the applicant’s departure from China which would cause the Chinese authorities, corrupt officials or any underworld figures to have any interest in the applicant now, or in the reasonably foreseeable future.

38    The importance of considering not just [70], but also [64], [65], and [69] of the Tribunal’s reasons, is that the earlier paragraphs contain findings as to the factual substratum upon which the further claim was based. The assertions by the appellant in answers 84, 91, 95, 96, 97, 99, 100 and 101, reproduced at [26] above, flowed from events that were not accepted by the Tribunal to have taken place, or from characterisations that were otherwise not accepted, such as documents that the appellant asserted he was planning to expose as being sensitive in nature. Thus the claims were very much subsumed in the Tribunal’s other finding, and not simply left to a general adverse credit finding, which may or may not have sufficed. In all of the circumstances, even if the assertions contained in what was said by the appellant did constitute additional claims, they were adequately addressed by the Tribunal. The primary judge did not err in failing to find to the contrary.

39    It follows that this aspect of ground 1(a) and (b), and the entirety of ground 2(a) and (b) must fail.

Asserted legally unreasonable rejection of a claim that the appellant’s brother-in-law was assassinated

40    A part of the documentary material that the appellant relied upon before the Tribunal was a Hong Kong death certificate for his brother-in-law. That death certificate described the cause of death as being a tumour. At the Tribunal hearing, the appellant suggested that, rather than dying of a tumour, his brother-in-law had been assassinated. The transcript recorded the following exchange:

Q11.    Yes, I’ve seen this document. It’s on my file already, so I will give that back. That’s the document that we received by email on 10 January.

A.    This one is information about my brother-in-law, sister and who her family is. Because they already got a – like, last year, they already got a visa to come to Australia, so that’s about the visa information, and this one is the documentation to prove my brother-in-law already died.

Q12.    O.K. So the documents that you’ve just shown me are Hong Kong passports for your sister, her husband and their child, their son, and a visa grant notice relating to a visitor visa that was granted to them in December 2015. And I also have a death certificate for your brother-in-law, indicating that he – his death was registered on 1 April 2016.

A.    Yes. No longer after he’d gotten a visa to come to Australia that he died.

Q13.    O.K. So how is this information relevant to your application?

A.    Actually, the – the original document I show to the Immigration office on 2012, right, all these documents actually is bring by my brother-in-law last time he visited me, and he’s the only member from our family during this year has contacted me and see me on face to face, but last year, he tried to tried to – going to, like, the second time to visit me in Australia, supposed to have, but he die, so we believe he has been assassinated.

Q14.    O.K. So you’ve said you believe that he’s been assassinated, but the cause of his death on his birth certificate is that was suffering from a tumour.

…

A.    The visiting happened after he got the regular Australian visa and we got the regular ambulance … like the government department already, like, knew, like going to come to visit me, and actually he already got a – some, like, documents from my father, some more information about … 14 June … he already got this document and he going, like, to come Australia and give to me, then he die.

Q17.    O.K. So he – he was in Hong Kong - - -

A.     Yes.

Q18.     - - - at the time that he died.

A.    Yes.

Q19.    And there is a medical certificate indicating that he died from a tumour or cancer.

A.    But just died in Hong Kong.

Q20.    So it’s - - -

A.    He got the tumour in China.

Q21.    Right.

A.    Yes. And that’s why – actually, because before, like, he got this problem come up, right – he got the regular body check, and every year, he does it for, and companies benefit in Hong Kong, like, they have to body check for every year, but after he – he returned back to China, right, he received some document from my dad underground but the problem thing that turn out, he died so quickly for tumour.

Q22.    But is it possible that he was not just sick with cancer? That seems the most likely explanation?

A.    Yes, but he got a regular – like, body check every year. Shouldn’t be that fast. But why – and also why happened, like, after he got the Australian visa?

Q23.    O.K. I’ll consider what you’re saying. I’m just putting to you that there’s nothing on the face of these documents to suggest that he was assassinated. O.K. Now, is there any other documents that you’d like to submit?

A.    That’s all I can give you today.

41    The Tribunal’s explanation for what transpired, which is at [36] to [38] of the decision record and which the appellant does not challenge, broadly described both the above exchange and the circumstances surrounding it. The Tribunal’s findings on this topic at [62] are reproduced above at [21].

42    The appellant submits that in making the finding at [62] that it was implausible that the appellant’s brother-in-law was assassinated, the Tribunal relied upon what was written on the death certificate and took it literally, whereas if the appellant’s brother-in-law had been assassinated, it would follow that the State could also issue a bogus death certificate. The problem with that argument is that the appellant did not at any stage suggest that the death certificate was bogus, as opposed to it recording an incorrect cause of death. As the Minister submits, the Tribunal did no more than not accept the appellant’s explanation for why his brother-in-law had died, and preferred to regard the death certificate as probative of the cause of death in the absence of any convincing alternative. That was clearly a conclusion that was fairly available. It was not legally unreasonable. The primary judge did not err in failing to find to the contrary.

43    It follows that this aspect of ground 1(a) and (b) also fails.

Asserted legally unreasonable rejection of a claim that the appellant’s father had been arrested in 2014 and had been rescued

44    This aspect of ground 1(a) and (b) turns on [64] and [65] of the Tribunal’s reasons, reproduced above at [21]. The appellant submits that the Tribunal in those paragraphs dismissed claims that the appellant’s father had been arrested in 2011 and 2014, and claims as to the circumstances in which his father was released in 2014, because there was no documentary evidence to support those claims. The appellant submits that if those events had taken place in the manner in which he described, it was extremely unlikely that there would be documentary evidence of such matters. Upon this basis, it is asserted that the primary judge erred in failing to find error on the part of the Tribunal.

45    This argument fails at the first hurdle, because it constitutes a failure to read fairly, let alone beneficially, the Tribunal’s reasons. Read in that way, the Tribunal was prepared to accept that the appellant’s father had been arrested in 2011, because there were documents that established that this had occurred. However, those documents did not support the surrounding claims in relation to that arrest. In those circumstances, the Tribunal was not prepared to accept that the appellant’s father had also been arrested on the basis of only the appellant’s assertions. Nor was the Tribunal willing to accept as plausible the appellant’s account of a rescue team being put together, nor a threat being made to go public with sensitive documents, in order to secure his father’s release. The documents that the Tribunal was provided did not appear to be particularly sensitive and some were already in the public domain. The Tribunal also placed some weight on these claims not having been raised in the appellant’s original statement of 12 May 2014, given the significance he attached to it in his oral evidence to the Tribunal. There was nothing particularly remarkable about this aspect of the Tribunal’s reasoning, let alone any basis for finding that it was so unreasonable as to constitute a jurisdictional error. The primary judge did not err in failing to find to the contrary.

46    It follows that this aspect of ground 1(a) and (b) also fails.

Asserted legally unreasonable rejection of a claim that the appellant’s father went into hiding

47    It is convenient to reproduce again what the Tribunal said at [67] for ease of reference:

The applicant claimed in his written statement that his father had to go into hiding as a consequence of the government’s persecution of him and his family. This claim is contrasted, however, with the applicant’s oral evidence that his mother and sister have moved to Hong Kong whilst the applicant’s father remains in the same province in China. The Tribunal also found the applicant’s evidence regarding his father’s employment circumstances to be evasive. The applicant initially told the Tribunal that his father was an ordinary farmer. Only once the Tribunal questioned the applicant’s ability to fund a three-year course of study as an international student in Australia did the applicant reveal that his father also ran a petrol station.

48    With regard to the reasoning that the claim that the appellant’s father went into hiding was implausible because his mother and sister moved to Hong Kong while his father remained in the same province in China, the appellant submits that that reasoning was legally unreasonable and that the primary judge should have so found. His argument is that although Hong Kong is part of China, any movement by his father would have led to his whereabouts being discovered and, accordingly, there was no evidence and intelligible justification for that finding. That is, again, not a fair reading of what the Tribunal was saying. The recorded claim was not just of persecution of the appellant’s father, but of his father’s family as well. As the Minister submits, the Tribunal was entitled to contrast this claim with the ability of his mother and sister to go to Hong Kong, and thereby to doubt the veracity of the claim. As the Minister points out, this was also supported by the exchanges between the appellant and the Tribunal at the hearing as follows:

Q136.    O.K. So why hasn’t your father gone to Hong Kong with your mother? It seems to me that he was concerned about his safety, he’d go to Hong Kong too?

A.    Yes, that’s why Hong Kong - - -

Q137.    The rest of your family’s gone there.

A.    Now Hong Kong is part of China too.

Q138.    I know.

A.    And also, right, my father not easy to move to anywhere, and that’s why my – now my father is just, like, having a spot, like - - -

Q139.    But your mother and sister moved to Hong Kong.

A.    Yes, my mother and my sister, yeah. My sister - - -

Q140.    But your father stayed in the same place where he’s had problems - - -

A.    That’s right.

Q141.    - - - for many, many years with the local authorities.

A.    And that’s why I told you, right, my parents, for their – like, friendly or something, at least they got a hiding spot and also that’s why, you know, after my father be arrested by – at least how many times, he’d be like tortured by these governments. My father should be staying there. He’s just like keeping the word out – all right, I’m not going, like, avoiding more stuff, more of these problems. But the government still torture him, and they still believe my father would do something. Like Chinese people thinks, the government sentence them, they say, when is…right? The bigger…just takes more weeks. Same thing – situation happened on my dad. Actually, sometimes my dad doesn’t want involved in any troubles. But at least he’s just come to him, because the government’s already put him in the black list. They always believed my dad would be do some things, like, try to expose the bad things, these government people, they done, right? And they always, like, believe my father would be, like, people, they done, right? And they always, like believe my father would be, like, the first risk, but actually my dad – my father doesn’t want involving any more.

49    The above transcript underscores the reasonableness of the Tribunal’s finding, necessarily supporting the conclusion that the assertion of legal unreasonableness cannot be sustained, such that the primary judge did not err in failing to find to the contrary.

50    It follows that this aspect of ground 1(a) and (b) also fails.

Asserted legally unreasonable treatment of the appellant’s protection visa application not having been made until 2014

51    The appellant claimed before the Tribunal that he only applied for a protection visa in 2014 because of an incident that involved his father at the time. He submits that this should be viewed as an incident that was a “straw which broke the camel’s back”, and that, in those circumstances, the Tribunal was required to consider his belated claim properly on its merits, rather than only relying upon it in finding that it had not been mentioned during the departmental interview and was raised for the first time at the Tribunal hearing. Once again, the appellant asserts that the primary judge erred in failing to detect this error as urged upon his Honour.

52    The appellant’s characterisation of the Tribunal’s reasons does not do justice to the detailed reasoning involved. In particular, the Tribunal said at [50]:

The Tribunal put to the applicant that his claim that he had threatened to reveal sensitive government information was significant insofar as the applicant suggested that this was the trigger for his protection visa application and that up until this point, he had not thought that he would be harmed as a consequence of his father’s activities. Despite the significance of this claim, the applicant had not mentioned it in his written statement or during the departmental interview. The applicant suggested that he had not realised how significant this was until his brother-in-law died. The applicant said he never thought his brother-in-law would pay with his life.

53    The Tribunal was entitled to take into account the fact that a claim was not made at an earlier time, and use that as a part of the matrix of facts and circumstances by which all but the earliest of claims, or those supported by documentary or other independent evidence, were not, in the greater part, accepted as reliable or credible. There was nothing legally unreasonable in this approach. The primary judge did not err in failing to find to the contrary.

54    It follows that this aspect of ground 1(a) and (b) also fails.

Section 424A of the Migration Act – Ground 1(c)

55    This aspect of the appellant’s appeal also turns on [50] of the Tribunal’s reasons, reproduced above at [52].

56    The appellant argues that omissions from information that was given by him at the departmental interview were themselves “information” for the purposes of s 424A of the Migration Act, thereby engaging the statutory procedural fairness regime contained in that provision. Section 424A provided (and still provides) as follows (emphasis in original):

424A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

57    The primary judge dealt with this claim at [25], reproduced above at [11]. The appellant asserts that his Honour erred, because “information” included omissions from the information that he had provided to the Minister’s Department.

58    The Minister submits that, on a proper understanding of the authorities, the appellant’s argument cannot be sustained. In particular, the Minister relies upon the following statements of principle:

(1)    In VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549 at [24], the following was said:

As to the first of these, there is now a considerable body of case law concerned with the compass of the term “information” in its s 424A(1) setting. The following propositions emerge from it:

(i)    the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168;

(ii)    the word “information” in s 424A(1) has the same meaning as in s 424: Win at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win at [19]-[22]; and

(iii)     the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29].

(2)    In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609, it was stated at [18]:

Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the mceaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”.

“does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

59    The Minister submits that the appellant’s failure to make at the outset the claim he later relied upon was properly to be characterised as an inconsistency, gap or defect in his own case, such that it was not “information” for the purposes of s 424A. The Minister’s submissions should be accepted.

60    For completeness, the Minister also points out that, while the treatment of this issue probably would not meet the requirements of s 424AA if the reasoning at [50] of the Tribunal’s reasoning did entail the use of “information”, it was nonetheless squarely raised with the appellant at the Tribunal hearing. That characterisation is correct.

61    The primary judge did not err on this topic. This aspect of ground 1(c) must therefore fail.

Conclusion

62    The appeal must be dismissed. The appellant must pay the Minister’s costs.

Associate:

Dated:    14 June 2018