FEDERAL COURT OF AUSTRALIA

Hong v Minister for Immigration and Border Protection [2018] FCA 1085

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 17 February 2018 be dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    By an amended originating application for review of a migration decision, the applicant seeks to review a decision of the second respondent (Tribunal) made in November 2017 (to affirm a decision made by a delegate of the first respondent (Minister) not to revoke the cancellation of the applicant’s Class BC (subclass 100) visa).

2    The circumstances leading up to the decision made by the Tribunal can be shortly stated. The applicant is a citizen of the People’s Republic of China who married an Australian citizen and came to Australia in 2009. In 2012, the applicant was granted a ‘spouse visa’. Four and a half years later, the applicant was convicted of several offences in connexion with her involvement in the importation of unregistered firearms and prohibited goods. This led to her being sentenced in the District Court of New South Wales, with a head sentence of two years, with a non-parole period of one year.

3    In March 2017, while the applicant was in gaol, a delegate of the Minister cancelled her visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act). Shortly thereafter, the applicant unsuccessfully requested that the Minister revoke the cancellation of her visa pursuant to s 501CA(4) of the Act. The applicant then applied to the Tribunal for review of the delegate’s decision and, as noted above, the Tribunal affirmed the decision of the delegate.

4    Both before the Tribunal and on this application, the applicant has been represented. For reasons that will become evident, this assumes some importance in the disposition of this application. It should be noted, however, that Mr Dobbie, who appeared for the applicant in this Court, did not appear below.

5    Section 501CA of the Act relevantly provides:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with [an invitation made under s 501CA(3)]; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

6    In addition to the statutory task prescribed by s 501CA, it is worth noting that the Tribunal was required to have regard to Part C of “Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction 65), being a direction made by the Minister in accordance with s 499 of the Act, which provides that the Minister may give directions to a body having functions or powers under the Act about the performance and exercise of those functions, and that a person or body “must comply” with such a direction. Part C falls under “Section 2 Exercising the discretion” of Direction 65 and sets out the “Primary considerations – revocation requests” and “Other considerations – revocation requests”. As set out at cl 6.1(4) of Direction 65, its purpose is to “guide decision-makers performing functions or exercising powers…to revoke a mandatory cancellation under section 501CA of the Act”.

7    Having set out the relevant statutory context, it is next convenient to canvass the Tribunal’s decision.

8    The Tribunal correctly held that it was bound by Direction 65 (at [6]). It was not in dispute before the Tribunal that the applicant failed the character test, being a person with a substantial criminal record (see [10]). The Tribunal thereupon correctly identified its function, namely deciding “whether there is another reason why the original decision should be revoked”.

9    The applicant’s background was discussed briefly (at [12]), before a brief outline of her criminal record was provided (at [13]-[15]). The Tribunal then considered the merits of the applicant’s case under two broad headings, namely “primary considerations” and “other considerations” (at [16]-[56] and [57]-[70]).

10    Under “primary considerations”, the Tribunal took into account the Government’s commitment to protecting the community from harm as a result of criminal activity by non-citizens (at [16]). Under the sub-heading “The nature and seriousness of the conduct”, the Tribunal considered the applicant’s offending in detail. It found that the offences were “serious” (at [23]), having regard to the sentencing judge’s remarks, and further found that if the applicant were to engage in further criminal conduct, the nature of the harm would arise from the nature of the firearms and weapons that were the subject of the offences (at [25]). The Tribunal concluded that the applicant had little insight into her offending and did not accept that she had shown any remorse or contrition (at [27]) and was concerned by evidence indicating that the applicant might be importuned by her husband in the future, particularly given that she assisted her husband with criminal conduct at his request (at [28]-[29]).

11    The applicant continued to deny knowledge of the illegality of dealing with the firearms. In light of her plea of guilty to the offences, the Tribunal rejected the claim that the applicant did not know what was in the container in which the weapons, the subject of the offences, were imported (at [30]). Further, the Tribunal rejected the applicant’s evidence that she would make enquiries through the internet to check whether something was illegal (at [33]) and held broader concerns regarding the applicant’s credibility and the evidence she had given before it (at [34]-[37]). The Tribunal also found the applicant’s husband to be an unreliable witness and rejected his evidence (at [42]). Taking all this into account, the Tribunal did not accept that the likelihood of the applicant reoffending was as low as claimed and considered that the protection of the Australian community weighed significantly in favour of not revoking the original decision (at [43]-[44]).

12    Having considered the evidence regarding the circumstances of the applicant’s relationship with her adult son’s children, the Tribunal found that the best interests of the applicant’s grandchildren were served by revocation. That being said, the Tribunal gave this less weight as the applicant was not in a parental relationship with her grandchildren (at [45]-[54]).

13    In considering the “Expectations of the Australian community”, the Tribunal found that the Australian community would expect that the applicant should not hold a visa (at [55]).

14    Under “other considerations” the Tribunal discussed the “strength, nature and duration of ties”, finding that the applicant did not have ties to the Australian community outside her immediate family, noting the claim that her husband would go with her to China if she returned and that her son and his family would remain in Australia and miss her and her assistance (at [61]).

15    In considering the “Extent of impediments if removed”, the Tribunal considered the applicant’s claimed medical conditions and her claim that she would not get proper medical care in China. It took into account, however, that there are public and private medical facilities in China (at [63]-[64]). It also found that there were no cultural or language barriers facing the applicant, given her 43-year residence in China and her work history there (at [66]). It noted the applicant’s submission that she would not receive money from her mother, sister and brother who live in China, if she returned. It also took into account that “the evidence shows that she will have the support of her husband if she returns because he will go with her”, although both he and the applicant claimed that he would not be able to earn a living in China (at [67]).

16    While accepting the applicant would face some hardship upon return, it did not accept that the difficulties were as great as the applicant claimed. In Australia, she was able to assist her husband’s business activities with her language skills and worked on weekends with him. The Tribunal found she therefore had some relevant business and language skills, as well as her teaching skills. It found that any hardship would diminish over time and that she was well-equipped to re-establish herself in China with the support of her husband, family and friends, and would attain a living standard at least that of other citizens (at [68]-[69]). In arriving at that conclusion, the Tribunal took into account the applicant’s husband’s medical conditions, lack of Chinese language skills and the claimed impossibility of his living and working in China “to the extent that [these factors] impact on the Applicant’s capacity to establish herself there and maintain basic living standard” (at [70]).

17    Finally, the Tribunal concluded that it was not satisfied that there was another reason why the original cancellation decision should be revoked, having found that the non-revocation considerations outweighed the best interests of the applicant’s grandchildren and the relevant other considerations (at [71]-[73]).

B    THE GROUNDS OF THE APPLICATION

18    The grounds of the application pressed by the amended application can be conveniently grouped into four categories:

(a)    the Tribunal failed to give proper genuine and realistic consideration to the material before it (Ground Seven (particulars (i)-(iii))) (Genuine and Realistic Consideration Ground);

(b)    the Tribunal’s decision was legally unreasonable and arbitrary (Grounds Eight and Ten (see particulars 8(i)-(ii)) (Legally Unreasonable and Arbitrary Grounds);

(c)    the Tribunal denied procedural fairness to the applicant by failing to put it to her that her use of interpreter would be used against her (Ground Nine) (Procedural Fairness Ground); and

(d)    the Tribunal failed to give consideration to relevant material provided by the applicant in answer to a question on the revocation application form submitted (Ground Seven (particular iv)) (Falun Gong Ground).

19    I have concluded that there is no real substance to the first three errors identified which, although not abandoned, were not the focus of the oral submissions and I will come back to them below in Sections D, E and F below. I will turn my attention first to the Falun Gong Ground, which emerged as the primary topic of the applicant’s oral submissions and requires more extensive analysis.

C    FALUN GONG GROUND

20    As this argument assumed central importance during the course of oral address, and had not been the subject of detailed discussion in the parties’ submissions as initially filed, both the applicant and the Minister filed further submissions. In addition, the Minister filed a supplementary application book comprising the parties’ statements of facts, issues and contentions before the Tribunal. In determining this issue, with the agreement of the parties, I have had regard not only to the material available at the oral hearing but also the additional material (filed in accordance with orders made at the conclusion of the oral hearing).

C.1    The Applicant’s Contentions

21    The applicant’s contention was developed as follows. In completing the relevant forms seeking a revocation of the cancellation, the applicant completed forms entitled “request for revocation of a mandatory visa cancellation under s 501(3A)” and “personal circumstances form – response to notice of intention to consider visa cancellation under s501(2) of the Migration Act 1958 or notice of mandatory visa cancellation under s501(3A) of the Migration Act 1958” respectively. It is common ground that the forms were before the Tribunal.

22    The applicant submits a claim was made to the delegate relating to her involvement with Falun Gong by completing a section of the revocation forms as follows:

Do you have any concerns or fears about what would happen to you on return to your country of citizenship? Yes [marked with an “X”] No

If yes, please describe your concerns and what you think will happen to you if you return.

Befor (sic) I left I was helping people from organisation of social justice called Falun Gong. Only few times but I was told not to do because I may loose (sic) my job if I continue. If someone will use this against me I may never find a job.

23    The applicant further contends that she maintained that claim at the hearing before the Tribunal, relying on the following extract of the transcript of the hearing before the Tribunal:

MR TURNER: Do you say that everything in that document is true?

INTERPRETER: Yes.

24    It was said the claim was “clearly” put to the delegate and was maintained at the Tribunal on review. Had the Tribunal made reference and demonstrated any reasoning in respect of this claim, it was submitted that the Tribunal would have made findings in relation to the applicant’s claim that she: (a) assisted the Falun Gong as claimed; (b) was told not to continue such assistance or risk losing her job; and (c) feared that if her assistance was used against her, she would never find a job.

25    In her supplementary submissions, the applicant put the case as follows:

In the context of the Applicant facing a lifetime ban from Australia (special return criterion 5001), the AAT considering the revocation forms as material documents under s37 of the AAT Act, the express adoption of the information on the revocation forms by the Applicant when giving evidence in chief, and the relevance of the claim for the purposes of Direction 65 and s501CA(4) of the Migration Act 1958, it is submitted that the Tribunal was obligated to address the claim. The claim, although not developed further, had not in fact, been abandoned. The Tribunal might have been satisfied that the risk of the harm feared was far-fetched, on the information before it. That, however, was a matter for the Tribunal when it determined the claim. Its failure to determine it constitutes jurisdictional error.

(Uncorrected)

C.2    The Minister’s Contentions

26    In response, the Minister noted the applicant never expressly raised the claim before the Tribunal that she was involved with Falun Gong and that such involvement gave rise to employment difficulties. The Minister submitted that therefore there was no obligation on the Tribunal to make findings in relation to the claim. In the absence of any reference being made to the claim before the Tribunal, the Minister further submitted it could be taken to have been abandoned.

27    The Minister relied upon the following extract of the transcript, of evidence given in chief by the applicant adduced by her legal representative before the Tribunal (affidavit of Jerzy Rek, affirmed 19 February 2018 at 21):

MR TURNER: If you had to go back to China do you believe you would have any difficulties?

INTERPRETER: Yes, and lots of them.

MR TURNER: Could you tell us about them, please?

INTERPRETER: First of all, now I’m not really fit, healthy wise, and I used to work as a teacher in China, for 25 years, if I’m now sent back I’ve no way to work as a teacher anymore.

28    It was then said that the applicant did not volunteer information, nor was asked any questions, about her past experiences with Falun Gong and any adverse effects which her claimed involvement with Falun Gong might have on her prospects for the future. She was not asked about, nor gave any evidence about, any intention she had to practise in the future. Further, no submissions at all were made before the Tribunal by the applicant’s then solicitor about this topic.

29    With regard to the personal circumstances form, the Minister submitted that the attempt of the applicant’s then solicitor for her to adopt the contents of the form was less than convincing (I extract the full context of her assent to the proposition that the document was true at [32] below).

30    In respect of the assertions in the forms completed by the applicant, the Minister’s position was that although the Tribunal was required to have regard to the matters contained in the documents forming the ‘T-documents’ before the Tribunal, ultimately it was for the applicant to satisfy the Tribunal that there was another reason why the original cancellation should be revoked. Further, it was said that the personal circumstances form contained a variety of assertions and that it should not be inferred that every matter contained within the form was being advanced as ‘another reason’ why the cancellation decision should be revoked.

C.3    Consideration

31    The question with which I am faced can be shortly stated: in the circumstances explained above, was the reference to: (a) the applicant’s work with Falun Gong; (b) allegedly being told that she had to stop because she might lose her job; and (c) the applicant’s statement that if somebody used this against her she may never find a job, sufficient to ground a ‘claim’ the Tribunal was bound to consider?

32    During the applicant’s examination in chief before the Tribunal, the following was recorded (affidavit of Jerzy Rek, affirmed 19 February 2018 at 19):

MR TURNER: For the transcript, I’m referring the applicant to the T documents. Could you turn to page 81? Now, that’s a document that goes from page 81 to page 99, do you recall filling out that form?

SENIOR MEMBER: Did she fill it out or did somebody fill it out for her?

MR TURNER: I think we’re getting to that?

INTERPRETER: Yes, I did, but some of the documents, due to my language deficiency, I asked my husband and my friend helped me doing that.

MR TURNER: Thank you. Have you looked at that document of recent times?

INTERPRETER: Yes.

MR TURNER: Do you understand what it says?

INTERPRETER: Basically.

MR TURNER: Do you say that everything in that document is true?

INTERPRETER: Yes.

33    As can be seen from this extract, there is some substance in the Minister’s submission that the applicant’s adoption of the contents of the form was less than full-throated and certainly lacking any specific reference to the claim now said to have been ‘clearly’ made. It is also important to have regard to the full context of the case that was being advanced before the Tribunal as revealed in the material before me, as follows:

(a)    The only mention of the applicant’s work with the Falun Gong appeared in the personal circumstances form (Exhibit A at 101).

(b)    The delegate summarised the applicant’s contention that “[i]n China she was helping people from organisation of social justice called ‘Falong Gong’. She states that a few times she was told not to because she may loose (sic) her job if someone used it against her. She is (sic) will not be able to return to teaching” (Exhibit A at 13); having summarised the position, the delegate does not appear, in light of the way the case was presented, to have felt it was necessary to deal with the contention (see Exhibit A at 12-15).

(c)    Consistently with this understanding of the forensic landscape, the applicant did not put the Falun Gong claim in issue in her statement of facts, issues and contentions filed in the Tribunal and the applicant did not lead any evidence in relation to the Falun Gong.

(d)    Indeed, the applicant gave evidence as to not being “really fit, healthy wise” in connexion with the assertion that “If I’m now sent back I’ve no way to work as a teacher anymore”.

(e)    Similarly, the material before the Tribunal records the representation given by Mr Rek that “[m]y wife lost her job as a teacher coming to Australia and there is a very slim chance that she will find another one…[c]ompetition on (sic) work market in China is fierce and she is already 53 years old” (Exhibit A at 117).

34    Recently, in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, the Full Court made the following observations in respect of the Tribunal’s duty to consider claims and issues arising from material before it (at [18]):

The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

The Tribunal is only required to consider such claims where they are either:

(a) the subject of substantial clearly articulated argument, relying on established facts; or

(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).

…

As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a) such a finding is not to be made lightly (NABE at [68]);

(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37     While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38     Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

(Original emphasis)

35    When one has regard to these principles and the circumstances as revealed from the record, the Falun Gong Ground must be rejected.

36    First, the Tribunal was required to, and did, provide the applicant with adequate opportunity to make her case before it; the material establishes that the applicant accepted and used that opportunity. Even though the Falun Gong point had been raised and summarised by the delegate, it was not substantively dealt with, as neither the applicant nor her legal representative raised it before the Tribunal as something that was being maintained.

37    Secondly, notwithstanding that the personal circumstances form recorded a reference to Falun Gong, and in this limited sense the initial claim was evident on the material, it was never referred to, nor persisted in, by the applicant’s solicitor. While I am conscious that the application should not be “treated as an exercise in nineteenth century pleading” (see SGBB v Minister for Immigration and  Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at 368-9 [17] per Selway J), without the ‘claim’ being expressly referred to or advanced at hearing before the Tribunal, and without evidence being given to support any such ‘claim’, it cannot be said that the applicant made an articulated argument, such that the Tribunal erred in failing to make a specific finding. More particularly, it was merely said that if someone used the applicant’s involvement with the Falun Gong against her, she may never find a job. There was no identification of who would use the fact of her involvement with the Falun Gong against her; such a ‘claim’ did not arise “squarely” on a review of the material before the Tribunal. It rose no higher than an unarticulated assertion unsupported by any evidence upon which its factual underpinning could be established.

38    Thirdly, further to the failure to advance the Falun Gong point, when afforded the opportunity to make arguments and submissions, to the extent that argument was advanced in relation to her job prospects, the evidence and submissions of the applicant before the Tribunal advanced a case that it was for economic and health reasons that the applicant would not be able to find work in China. A clear example of the failure of the applicant to advance any evidence in support of the Falun Gong point, is seen in the following exchange during cross-examination (affidavit of Jerzy Rek, affirmed 19 February 2018 at 29):

MR DENNIS: You’d previously had work in China, is that right?

INTERPRETER: Twenty-five years, yes, as a teacher.

MR DENNIS: Do you think you would be able to go back to that job if you went to China?

INTERPRETER: No, impossible – impossible – because I’ve already quit my profession.

MR DENNIS: Why would it be impossible to get another job?

INTERPRETER: You see, because of my womb issues and even as a teacher, it was very, very hard for me to stand in front of class for 45 minutes, let alone other jobs.

(Emphasis added)

39    The transcript records that the applicant had an opportunity to give evidence in relation to the difficulty of finding a job in China and, consistently with the manner in which the case was run, gave evidence as to her medical condition but evidence as to the Falun Gong point was absent.

40    Fourthly, the applicant was legally represented before the Tribunal. It is evident that the statement of facts, issues and contentions was prepared by the applicant’s legal representative and there is no reason whatsoever to doubt the competence of the solicitor or question that he was acting appropriately, on instructions, in making forensic decisions as to the conduct of the case. Mr Dobbie did not, understandably, submit otherwise. Importantly, this is not a case where the solicitor maladroitly failed to address the claims as articulated at the hearing: here the applicant did advance relevant contentions and evidence in respect of the issues she would face in finding work in China, on the basis of her age and health condition. There is nothing in the material before me to suggest that advancing the claims in this way was not a rational forensic decision made on behalf of the applicant.

41    Before leaving this last point, I should add that I am conscious of the fact that the mere fact of legal representation should not somehow be seen as a factor which automatically eradicates error on the part of the Tribunal in failing to consider a claim, however, as Robertson, Griffiths and Perry JJ noted in SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at 35 [37]:

We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant’s submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection.

(Emphasis added)

42    It follows from the above that the Tribunal did not fall into error in failing to make a specific finding with respect to the applicant’s alleged activities with the Falun Gong. This ground fails.

D    GENUINE AND REALISTIC CONSIDERATION GROUND

43    The applicant contended that she made the following claims:

(a)    that she suffered from diabetes, high cholesterol, anaemia, uterine prolapse, tumours near her nose and that she was afraid that she would not get proper care and medication in China;

(b)    that her husband would not be able to work or live in China;

(c)    that her husband suffered from various medical conditions that required her assistance and presence, including: depression; chronic pain; a very serious problem with his spine, that on bad days he could not bend over and put his socks on; that she helped him take his medication; and helped him with his daily physical activities.

44    The applicant contended that the Tribunal failed to give proper, genuine and realistic consideration to the material before it because it failed to make findings in relation to a number of topics, including whether she would get the care and treatment required in China; whether she suffered from anaemia, diabetes and high cholesterol; whether her husband would be able to live and work in China, his medical conditions and the assistance she provided to him; whether the applicant’s husband would be able to receive the claimed required assistance from anyone else, if the cancellation of the applicant’s visa were not revoked.

45    The Tribunal discussed the applicant’s claims with respect to her health conditions under the heading “Extent of impediments if removed”. At [62], the Tribunal reminded itself of the criteria it was required to take into account (set out below) when it considered the extent of any impediments if the applicant was removed. At [63]-[65], the Tribunal discussed the evidence of a medical practitioner certifying the applicant’s medical conditions. The Tribunal noted the applicant’s claims that she took iron tablets and medication for diabetes and cholesterol, and the further claim made at hearing that the applicant had tumours near her nose. The Tribunal thereafter noted the applicant’s claim that she may not get proper medical care in China, “took into account” that there are public and private medical facilities in China and referred to the claim of the applicant that she could no longer teach music because she could not stand for 45 minutes in front of a class.

46    After considering the applicant’s other claimed hardships relating to cultural barriers and family support, the Tribunal stated as follows [68]-[70]:

The Tribunal accepts that the Applicant will face some hardship on return to China, including missing her son and his family. It gives little weight to her loss of association with the choir here or activities in nursing homes. She is well-equipped to undertake such activities in China.

The Tribunal does not accept that the difficulties are as great as the Applicant claims. She was able to assist her husband in a business activity in Australia using her Chinese language skills. The Pre-Sentence Report dated 17 October 2016 stated that she had provided her Australian Business Register information for verification of business registration. She worked at the weekend markets with him. She has those business and language skills as well as her teaching skills. The Tribunal finds that any hardship will diminish with time and that she is well-equipped to re-establish herself in China with the support of her husband, family and friends, and will attain a living standard at least that of other Chinese citizens.

In coming to that conclusion, the Tribunal has taken into account the evidence about the Applicant’s husband’s medical conditions, lack of Chinese language skills and the claimed impossibility of his living and working in China, to the extent that they impact on the Applicant’s capacity to establish herself there and maintain basic living standards.

(Uncorrected)

47    Turning to consider the applicant’s contention, it is necessary to have regard to three matters which do not require detailed elaboration: first, care must be given to ensure that the findings made by the Tribunal are not construed with an eye attuned to the detection of legal error where none truly exists: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ; secondly, that the language of “proper, genuine and realistic consideration”, has the very real danger of creating a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at 520 [24] (Flick, Griffiths and Perry JJ); and thirdly, the requirement to engage in an active intellectual process does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at 363-4 [45].

48    In addition to these principles, it is worth briefly extracting the relevant content of Part C of Direction 65, so far as is relevant to the applicant’s contentions, which provides as follows:

14.5 Extent of Impediments if removed

(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) The non-citizen’s age and health;

b) Whether there are substantial language or cultural barriers; and

c) Any social, medical and/or economic support available to them in that country.

49    It must be remembered that in undertaking the review, the Tribunal is bound by Direction 65: s 499(2A); Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at 221 [65].

50    For the following reasons, I reject the applicant’s contentions.

51    First, as the passage extracted above from the Tribunal’s reasons demonstrates, the Tribunal did take into account the applicant’s claims regarding medical treatment. A finding was not required in relation to every contention in some formulaic way and a fair reading of the Tribunal’s decision reveals that it did accept the applicant’s contentions about her medical conditions. Although not referred to explicitly as a finding, at [64], the Tribunal indicates an implicit acceptance of the claimed medical conditions, albeit rolled-up with an inferential rejection of the applicant’s proposition that she would not receive proper treatment in China in the economical use of the words “takes into account”.

52    Secondly, while no finding was expressly made, it cannot be said that the Tribunal failed to engage in an active intellectual process with respect to the applicant’s husband’s medical condition. As has been set out above, the Tribunal was well aware of its task in assessing the impediments that the applicant may face in “establishing [herself] and maintaining basic living standards”. The Tribunal heard the evidence with respect to the applicant’s husband and did not accept, at [69], that “the difficulties are as great as the Applicant claims”. This must, however, be read together with [70] where the Tribunal explained that:

In coming to that conclusion, the Tribunal has taken into account the evidence about the Applicant’s husband’s medical conditions, lack of Chinese language skills and the claimed impossibility of his living and working in China, to the extent that they impact on the Applicant’s capacity to establish herself there and maintain basic living standards.

(Emphasis added)

53    The Tribunal’s statement that it had taken into account the evidence about the husband’s medical conditions again appears to be an inferential acceptance of the available evidence about those conditions. The task the Tribunal was undertaking, was the assessment of evidence relevant to determining the applicant’s ability to establish herself in China, guided as it was by Direction 65. It did just that.

54    Thirdly, the present circumstances are an example of where the Tribunal’s consideration of the applicant’s submissions and evidence has been “subsumed in findings of greater generality” in accordance with the principle in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604-5 [47]. The Tribunal dealt with the applicant’s submissions as to her health issues by inferentially rejecting the premise upon which it rested, namely that she would not receive proper care in China (at [64]). Further, in making the more general finding that the applicant was well-equipped to re-establish herself, the Tribunal’s consideration of the applicant’s and her husband’s medical conditions and related issues was subsumed in the finding of greater generality at [69] that it “does not accept that the difficulties are as great as the Applicant claims” and that any hardship would “diminish over time and that she is well-equipped to re-establish herself”. The reference at [70] to other evidence regarding the applicant’s husband which the Tribunal had taken into account, serves to reinforce this reading of its reasons.

55    Accordingly, I find that this ground of review fails.

E    LEGALLY UNREASONABLE AND ARBITRARY GROUNDS

56    The applicant impugns the Tribunal’s conclusion at [69] where it stated that:

The Tribunal finds that any hardship will diminish with time and that she is well-equipped to re-establish herself in China with the support of her husband, family and friends, and will attain a living standard at least that of other Chinese citizens.

57    It is said that the Tribunal’s decision was unreasonable or arbitrary because:

(a)    it took into account “the living standard of at least that of other Chinese citizens” rather than considering the subjective circumstances of the applicant, and there was no evidence as to what constituted that living standard or how long the applicant would suffer hardship until that living standard was attained;

(b)    it considered that the applicant’s husband would support her when the evidence was that he could not work or live in China;

(c)    it considered that the applicant’s family and friends would support her when the evidence was that neither of those groups could support her.

58    Further, the applicant impugns the Tribunal’s following statement (at [33]):

She said that she would not commit the offences again because she knows it is illegal. She also said that she would check on the internet to find out if something was illegal. Given her apparent limited English, the Tribunal does not find that evidence persuasive. She was assisted during the hearing by an interpreter.

59    The applicant contends that the decision of the Tribunal is unreasonable or arbitrary because:

(a)    the mere fact that the applicant used an interpreter did not mean that she could not read what is on the internet or obtain a translation and that if the Tribunal was going to draw an adverse inference from the mere fact that the applicant used an interpreter, it was required to put her on notice;

(b)    the Tribunal assumed that information on the internet was not able to be translated so that the applicant could read it in her language.

60    Finally, the applicant impugns the Tribunal’s consideration of her evidence given at hearing. At [37], the Tribunal said the following:

The Applicant was evasive when giving evidence. For example, when asked whether she knew about the knives, sling shots and other weapons, she said the bullets were made of plastic. That answer was not a response to the question.

61    The applicant relies on the following exchange recorded on the transcript of the hearing before the Tribunal (affidavit of Jerzy Rek affirmed 19 February 2018 at 25):

MR DENNIS: Ms Zhou, you know that there was more than just guns; there were knives and sling shots and other weapons?

INTERPRETER: Yes. Those bullets are made of plastic.

62    It is said that the Tribunal’s adverse finding was legally unreasonable or arbitrary because the applicant had in fact given an affirmative answer to the question asked (“yes”), as demonstrated by the extract from the transcript set out above. It is contended that the Tribunal’s later conclusion that the applicant had not provided a response to the question asked was legally unreasonable in light of the affirmative answer she in fact gave.

63    The principles relating to legal unreasonableness were helpfully summarised as follows in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 351 ALR 153 at 161-2 [35] as follows by Charlesworth J (with whom Flick and Perry JJ agreed):

The alleged error is one affecting the process of reasoning adopted by the Minister in the exercise of a discretionary power. It is well settled that a discretionary power conferred by a statute is to be construed as subject to the condition that it be exercised reasonably. The principles to be applied are considered at length in the various judgments in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and in the decisions of the Full Court of this Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. They may be briefly summarised as follows:

(1) the power conferred under s 501(2) of the Act is implicitly confined by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J);

(2) as Allsop CJ explained in Stretton (at [11]), the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:

… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

(3) the Court is to look to the reasons given for the decision to understand why the power was exercised as it was: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437;

(4) as the Full Court explained in Singh, the process of review of legal unreasonableness “will inevitably be fact dependent”. The Court continued (at [48]):

… That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as ‘intelligible justification’ must involve scrutiny of the factual circumstances in which the power comes to be exercised.

(5) in a different review context, Deane J spoke of the requirement that a statutory tribunal act rationally and reasonably: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 — 368. His Honour’s explanation of the content of that obligation applies equally to the Minister in the exercise of the power conferred by s 501(2) of the Act (at 367):

When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.

(6) nevertheless, as Wigney J said (with respect correctly) in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (at [55]):

… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

64    Having regard to the above principles, and on a fair reading of the Tribunal’s reasons, I cannot accept the applicant’s contentions.

65    I reject the notion that the Tribunal’s consideration that the applicant would obtain a living standard at least that of some Chinese citizens, constituted the use of an objective standard without consideration of the bespoke circumstances of the applicant. The Tribunal engaged in a comprehensive discussion of the applicant’s circumstances at [62]-[69]. Indeed, the finding that the applicant would “obtain a living standard at least that of other” Chinese citizens, cannot be read divorced from the finding that the applicant was “well-equipped to re-establish” herself in China (at [69]). The Tribunal was not equating the applicant’s situation to that of any particular citizen. The finding represents an acceptance that there is a range of living standards in China, within which the applicant would be no worse off than some other citizens. Further, this finding cannot be read independently of the Tribunal’s consideration of the applicant’s employment activities (at [66]) and business and language skills (at [69]). In the context that the Tribunal was considering impediments to the applicant establishing herself and maintaining basic living standards, such a finding was clearly open. Beyond accepting that the applicant would face some hardship returning to China, the Tribunal was not required to make a more granular finding as to the specific length of time for which any such hardship might continue. Indeed, in the context of its findings as to the applicant’s ability to re-establish herself in China, it found that the hardship would diminish over time. There was nothing arbitrary about this conclusion and it was founded upon intelligible reasoning.

66    Regarding the finding that the Applicant would have the support of her husband, family and friends, a fair reading of the Tribunal’s decision does not accord with what the applicant has submitted. The finding at [67] that the applicant’s husband would support her was not a finding that the husband would financially support her. That paragraph must be read as a whole. The finding is contextualised by the Tribunal’s comment that “she will have the support of her husband if she returns because he will go with her, although they both claim he will not be able to earn a living there” as well as the Tribunal having taken into account the “claimed impossibility of his living and working in China” (at [70]). The Tribunal’s finding at [69] regarding the support of the applicant’s friends and family must be similarly read in light of a broader notion of ‘support’. This reading is demonstrated by the cross-examination of the applicant before the Tribunal on the topic of a “support network” which was meant more broadly than financial support (see affidavit of Jerzy Rek, affirmed 19 February 2018 at 28-29). This confirms that rather than making a finding in relation to financial support, the Tribunal was considering support more generally. The finding in the final sentence of [69] of the Tribunal’s reasons (extracted at [46] above) must be read in that light. The finding was open to the Tribunal on the material and was neither unreasonable nor arbitrary.

67    The applicant’s complaints regarding the Tribunal’s treatment of the internet searches contention may be dealt with shortly. The Tribunal’s comment at [33] must be read in the context of what was said as follows at [34]-[35]:

During cross-examination, the Applicant agreed that she accepted some responsibility for what took place, but that is inconsistent with most of her evidence.

The evidence shows that the Applicant has claimed that she pleaded guilty because her husband told her to and because her legal representative told her to do so. Mr Rek claims her lawyer told her to plead guilty and that he had only pleaded guilty on the understanding that no action would be taken against the Applicant.

68    The Tribunal did not draw an adverse inference against the applicant because she required the assistance of an interpreter. Rather, the Tribunal’s comment was made in the context of a broader, adverse credibility finding. The point the Tribunal was making was that the fact of the applicant’s language barrier compounded the unreality of accepting her evidence that she would search the internet to decide whether her future conduct was illegal or not.

69    Further, I reject the submission that the Tribunal proceeded on the assumption that the information on the internet could not be translated. Read fairly, the Tribunal’s reasoning was that, due to the language barrier, it was not persuaded by the applicant’s evidence that she would, through an internet search and through a process of translating the description of norms of conduct from English into the Chinese language, identify whether particular conduct might or might not be illegal. The finding was open and was not unreasonable nor arbitrary. Moreover, as set out above, the Tribunal’s comments in this regard cannot be read as isolated from the broader credit finding.

70    Dealing with the finding as to evasiveness, while the literal recording reflected in the transcript identifies that the applicant said “yes” in response to the question asked, the supplementary sentence “[t]hose bullets are made of plastic” does not reflect an answer directly responsive to the question posed. While I accept Mr Dobbie’s submission that the applicant’s affirmative ‘yes’ response was not some verbal tic, the Tribunal had the considerable benefit of observing the applicant give evidence before it and was entitled to assess her general demeanour in doing so. As anyone experienced in reviewing transcript knows, the written word itself often gives a less than complete or definitive reflection of the responsiveness of a witness.

71    Further, care must be taken not to isolate the finding from the context in which it was discussed. At [37], the Tribunal was discussing the whole of the applicant’s evidence and referred to this particular evidence as an example. The generalised evasiveness finding was not unreasonable nor arbitrary; it was based upon the Tribunal’s observations and impressions formed while observing the applicant give evidence.

72    Accordingly, these grounds are not made out.

F    PROCEDURAL FAIRNESS GROUND

73    The applicant impugns [33] of the Tribunal’s reasons, which is extracted at [58] above, on the basis that the Tribunal denied her procedural fairness. The contention is put in two ways. First, it is said that the Tribunal was required, and failed, to put the applicant on notice that the fact she used an interpreter at hearing would be used against her in relation to whether she would be able to check the internet if something was illegal. Secondly, it is said that the Tribunal was required, and failed, to put to the applicant that she would not seek out a translation of material on the internet.

74    I have already dealt with, and rejected, the argument in relation to the use of an interpreter during the hearing before the Tribunal above. Dealing with the second contention, the following comments of French J in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [26]-[27] are of importance:

In my opinion, there is no failure of procedural fairness here.  The Tribunal, of course, is not obliged as a matter of procedural fairness to alert parties about, and invite their comments on, its thought processes in decision-making, nor upon the possibility that it might not accept certain of the evidence tendered by a party.  The process is, of course, inquisitorial but in the course of it the applicant for review submits the evidence that the applicant relies upon and makes his or her case based upon that evidence.

In this case, the applicant was represented by a migration agent.  The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.  Of course, if there is a positive finding of dishonesty or concoction or forgery that the Tribunal makes, of which no prior notice has been given to an applicant in the course of the hearing or otherwise, then a question of procedural fairness can arise, as did in the cases to which I have made reference earlier.

75    His Honour’s comments are directly relevant in these circumstances. The Tribunal did not make a positive finding of dishonesty, concoction or forgery. The Tribunal did not find that the applicant would not seek out translation of the internet material. It simply did not find the applicant’s evidence about searching the internet persuasive. As French J made clear in the above passages, the Tribunal was entitled to make that assessment of the applicant’s evidence. There was no error in the Tribunal not seeking the applicant’s comment on the possibility that it might not accept this evidence.

G    CONCLUSION AND ORDERS

76    No jurisdictional error has been demonstrated. Accordingly, the application ought to be dismissed with costs.

Associate:

Dated:    20 July 2018