FEDERAL COURT OF AUSTRALIA

SZTKR v Minister For Immigration and Border Protection [2018] FCA 1613

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellants pay the First Respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The first appellant is the mother of the second appellant. Both are citizens of the Republic of China. The first appellant arrived in Australia on a student visa on 23 May 2008, and on 24 July 2012 she applied for a Protection (Class XA) visa (visa application) based on her fear that she would be persecuted in China as a result of her Christian faith. On 11 September 2012 her daughter, the second appellant was born, and was joined to her mother’s visa application on 22 October 2012. Only the mother has made specific claims under the Refugee Convention; the second appellant relies on her membership of the same family as the basis for her application.

2    The visa application was refused by a delegate of the Minister for Immigration and Border Protection on 19 November 2012. The appellants then applied to the Refuge Review Tribunal (now known as the Administrative Appeals Tribunal) for a review of the delegate’s decision. On 19 September 2013 the Tribunal affirmed the decision of the delegate. The appellants then appealed to the Federal Circuit Court of Australia (FCCA) for judicial review of the Tribunal’s decision, and on 22 August 2014 the primary judge dismissed the appellants’ application.

3    The appellants then appealed to this court. The grounds of appeal relied upon are as follows:

1.    After the matter was dismissed by His Honour, my son [name redacted], who was born in Australia on 11 May 2014, lodged an application for a Protection visa. As my son is a minor, I gave evidence on behalf of my son. My son's application was significantly relied on my evidence in my own application for the Protection visa [sic]. Eventually, the Tribunal accepted almost all of my evidence, which had previously been denied by a differently constituted Tribunal. My son has therefore been recognised by Australia as someone who is entitled to protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently, my son has been granted a Protection (Class XA, subclass 866) visa.

2.    The above is obvious evidence that neither the Tribunal, which had reviewed my own application, nor His Honour has, fairly and carefully, considered my application.

3.    I firmly believe that His Honour and the Tribunal did fall into error.

4    The Minister was represented at the hearing by Ms Rachel Francois of counsel, who filed written submissions in advance of the hearing and made submissions at the hearing. The appellants were represented at the hearing by the first appellant, who made submissions with the assistance of an interpreter.

2.    THE DECISIONS OF THE TRIBUNAL AND THE FCCA

5    The claims made by first appellant before the Tribunal were, in broad terms, that she was a member of a local church in Fujian, China and had attended Bible study classes on Friday and Saturday evenings with about 9 other students. After coming to Australia on a student visa, she regularly attended the Local Church in Sydney, from June 2008. She returned to China to visit her parents in December 2009. While she was there her father was badly injured in a traffic accident and she spent two months caring for him. During this time she contacted her aunt and friends in the Local Church, she attended secret church meetings and helped to produce copies of a bible to help to evangelise students. Her aunt was arrested in February 2010 while organising a bible study class in her home. The first appellant left China immediately for her own safety and arrived in Australia on 18 February 2010. Since she has been here she has remained in contact with friends in the church in China and on 6 occasions has sent them copies of the Local Church’s well-known religious book, the Holy Word for Morning Revival. In June 2012 two of her friends and 30 others were arrested at a church meeting and on the following day the police raided her home in China. She fears persecution if she returns to China as a faithful Christian and as an active member of the Local Church.

6    The Tribunal ultimately did not accept the first appellant’s evidence as credible. Amongst other things, it was not satisfied that she had sent Local Church material to China from Australia, it did not accept that she was involved in any way with the Local Church when she visited China, it was not satisfied that she attended the Blacktown branch of the Local Church as she claimed and expressed doubts as to the credibility of her claims in general. Having regard to its findings as to the credit of the first appellant, the Tribunal was not satisfied that there is any reason to believe that there is a real chance that she would suffer harm of any kind because of her religion and concluded that there is no reason why she would suffer harm should she return to China. It rejected her claims for protection made pursuant to s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).

7    The application to the FCCA was based on one ground, namely that the decision of the Tribunal “was not a decision under the [A]ct”. The application also set out four further ‘grounds’ on which the first ground was based, which (the primary judge recorded) the solicitor representing the appellant accepted distilled to one matter in issue, that being whether or not the decision of the Tribunal was vitiated by apprehended bias. The substance of the appellants’ contention before the primary judge was that after a lengthy hearing in which the internal consistency and credibility of the appellants’ claims was closely tested, the first appellant successfully resisted all challenges to her credibility. Even so, the Tribunal found against her.

8    The learned primary judge found at [18]-[19]:

[18]    The following may be readily acknowledged. First, a differently constituted Tribunal might have reached different subjective conclusions based upon the same material. Secondly, the transcript reveals that the first applicant proved both adept and eloquent in answering the Tribunal’s questions. Thirdly, decision makers dealing with hundreds, possibly thousands of similar claims, most of which fail, and many of which are advanced by a small number of well known representatives, must resist the temptation towards pre-judgement. Every case must be dealt with on its own facts and on its own merits. A curiosity in the present matter is that the applicant’s husband made a separate protection visa application which was separately considered and rejected. The risk of pre-judgement is a risk that the Tribunal needed to avoid. The question is whether the Tribunal failed to avoid it.

[19]    I am satisfied that the Tribunal did not fall into error. In that regard I agree generally with the Minister’s submissions. Despite suggestions to the contrary in the applicants’ written submissions, this is not a case of template reasoning. The Tribunal’s reasons are based squarely and directly upon its assessment of the particular applicants’ claims. Secondly, the Tribunal’s reasons at [20] do not emerge out of thin air but flow logically from the Tribunal’s questioning of the applicant at the Tribunal hearing.

3.    CONSIDERATION

9    The only ground raised on the appeal is to the effect that the decision of the Tribunal (first decision) is vitiated by jurisdictional error because it is inconsistent with the findings made by a differently constituted Tribunal, being the decision made on 14 February 2017 (second decision). In the second decision the first appellant contends that her evidence entitling her to refugee status was accepted and that it was on the basis of that evidence that her son’s application for a visa was accepted. The first appellant’s son was not a party to these proceedings.

10    This ground was not advanced before the FCCA. That is not surprising, because the second decision post-dated the decision of the primary judge by over three years. However, leave to rely on that ground is necessary. The relevant principles for deciding whether to grant leave are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], as follows:

[46]    Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].

[47]    In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

[48]    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

11    In my view there is adequate explanation for the delay, and no prejudice to the Minister has been raised. However, the Minister contends that leave should be refused because the ground advanced has no merit. He submits that the inconsistency between the Tribunal decisions does not give rise to any jurisdictional error. The appellants submit that the fact that there is an inconsistency between the first decision and the second decision should be sufficient to warrant the remission of the present application to the Tribunal for reconsideration. The appellants do not contend that the Tribunal made an error in reaching its credit finding on the basis of any failure in the reasoning of the Tribunal. Instead they contend that as a matter of logic, where there is an inconsistency between the decisions of two perhaps differently constituted Tribunals, one Tribunal might have reached a different conclusion due to jurisdictional error.

12    I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellant the visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).

13    In the context of the present appeal, I note that the Minister accepts that there is an inconsistency between the findings of credit and fact of the Tribunal in the first decision and those findings in the second decision. The relevant question then is whether or not that inconsistency is sufficient to amount to jurisdictional error.

14    In Minister for Immigration and Border Protection v Singh [2016] FCA 575 (Singh), Edelman J said:

52        It is well established that a mere incorrect finding of fact (if it is not a jurisdictional fact) or merely unsound reasoning is not a jurisdictional error: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35-36 (Brennan J); SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402, 407-408 [20] (the Court); Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 [20] (North and Lander JJ); SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 [36] (Katzmann J).

53        Although an incorrect finding of fact (which is not a jurisdictional fact) will not be a jurisdictional error, it may be arguable that a jurisdictional error exists where an erroneous finding of fact can be characterised as unreasonable or irrational, even if the exercise of power is not expressly or impliedly conditioned upon reasonable and rational fact finding. In The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [141]-[194], I considered the authorities in relation to erroneous factual findings. The issue had been raised in that case but it had not been fully argued. My view was that recognition of a ground of review based upon unreasonable or irrational fact finding may require development of Australian law. Although there may be arguments in favour of such a development, it should not be undertaken without careful consideration. It involves the boundary of a fundamental divide which still exists in Australian law. That divide is sometimes expressed as one between decisions that are within power and those which are ultra vires. It is sometimes described as the difference between a review on the basis of legality and authority and a review on the basis of “merits”. And it is sometimes characterised as an error which is “jurisdictional” and one which is “non-jurisdictional”: see S Gageler “The Master of Words: Who Chooses Statutory Meaning?” in A Connolly and D Stewart (eds) Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (Federation Press, Sydney, 2015) 12, 15.

54       Some recent decisions have suggested that such review of findings of fact might have been contemplated by the decision of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 365-366 [72] where their Honours spoke of a decision maker committing jurisdictional error by acting unreasonably in a legal sense in relation to “[t]he more specific errors in decision-making, to which the courts often refer” and committing “a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally”. However, the reference to specific errors in decision making was accompanied by a footnote reference to Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(2) which is concerned with discretionary exercises of power, rather than findings of fact. Similarly, Gageler J referred to reasonableness as a condition of the exercise of a discretionary power as well as where reasonableness is a prerequisite to an exercise of a statutory power or performance of a statutory duty (370-371 [90]). His Honour did not say that mere unreasonable fact finding would suffice.

15    It is not sufficient to point to an inconsistency between the findings of fact of a Tribunal to make good a claim to jurisdictional error. As noted in the authorities to which Edelman J referred in [52] above, a mere incorrect finding of fact (if it is not a jurisdictional fact) is not a jurisdictional error. That position is dispositive of the present proposed ground of appeal. The appellants have not established any incorrect finding in the decision of the Tribunal. They contend that the inconsistency between the first Tribunal decision and the second Tribunal decision must mean that there was an error. However, findings of credit by the Tribunal are uniquely within the province of the Tribunal.

16    Further, as Edelman J notes in Singh at [53] and [54], the position may be different in cases where the question of legal unreasonableness arises. However, it is not necessary to address that point in the present case, because on no view could the first decision be considered to be legally unreasonable merely because the second decision included findings that are inconsistent with the first. The proposition that the first decision was in error presupposes that the second, rather than the first decision was correct. That proposition has not been established. Once this point is realised, consideration of the second decision becomes irrelevant. On no view could the first decision be regarded to fall within the test for legal unreasonableness because of the mere fact that it is inconsistent with the second decision.

17    Accordingly, in my view there are insufficient prospects of success to warrant the grant of leave to the appellants to rely upon the ground of appeal now proposed to be advanced.

4.    DISPOSITION

18    The grant of leave to rely on ground 1 of the appeal must be refused. The appeal must be dismissed with costs.

Associate:

Dated:    26 October 2018