FEDERAL COURT OF AUSTRALIA

CAQ18 v Minister for Home Affairs [2019] FCA 603

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for review of a decision of the Administrative Appeals Tribunal (Tribunal): CAQ18 v Minister for Home Affairs [2018] FCCA 2302.

2    The Tribunal affirmed the Minister's delegate's decision to refuse to grant the appellant a Protection (Class XA) visa.

3    The Tribunal rejected the appellant's claims on the basis that it considered him an unreliable witness. It did not accept that his evidence about key aspects of his claim was based on personal or actual experience and considered it was fabricated to create a claim to be owed protection.

4    The primary judge found that the Tribunal's adverse findings about the appellant's claims and evidence were open to it. The primary judge's reasons were short and delivered ex tempore. Relevantly, the appellant contends on this appeal that the primary judge did not properly consider the grounds he advanced, as indicated by the brevity of the reasons and the fact they were delivered ex tempore.

Background

5    The appellant is a citizen of the People's Republic of China. Prior to departing China, the appellant assisted in running his father's farm. In 2010 his father left China for Canada. In February 2012 his father was granted refugee protection in Canada, and later permanent residency.

6    The appellant arrived in Australia on a student visa on 7 September 2012. That visa was cancelled on 10 April 2014. The appellant had not continued his studies and had obtained work in the construction industry as a gyprocker.

7    In May 2014 the appellant was located by officers of the Department. He was interviewed by compliance officers on 15 May 2014. On 3 June 2014, the appellant applied for a protection visa and was then granted a bridging visa.

8    It appears from the delegate's reasons that the appellant was also interviewed on 20 October 2015. On 23 October 2015, the delegate refused to grant the appellant a protection visa. The delegate noted that the appellant's claims comprised the fear that if he returns to China, he will have no farmland to work on and the fear that he will be investigated on the basis of connections with Falun Gong and imprisoned.

9    The appellant applied to the Tribunal for a review of the delegate's decision.

10    On 13 February 2018 the Tribunal conducted a hearing at which the appellant gave evidence. The appellant was assisted by a migration agent and an interpreter. On 21 February 2018 the Tribunal wrote to the appellant's migration agent, indicating that it had concerns about aspects of the appellant's evidence which might form part of the reasons for affirming the delegate's decision, and inviting comment. As a result, the agent provided a written submission (Post-hearing Submission). The agent addressed those matters. The agent also attached certain documents to the Post-hearing Submission, including the appellant's father's protection claim which was made in Canada and included in a personal information form (PIF). According to the Post-hearing Submission, it appeared that the Canadian authorities had not published reasons relating to the father's protection claim. The Tribunal also had before it copies of various documents evidencing the permanent residency status granted to the appellant's mother and brother in Canada in 2015.

11    On 21 March 2018 the Tribunal affirmed the decision not to grant the protection visa.

12    The appellant then applied to the Federal Circuit Court of Australia seeking review.

Protection claims

13    When the appellant was interviewed on 15 May 2014 by the compliance officers, it was recorded that the following conversation occurred:

Q.    Are there any reasons why you cannot return to your home country?

A.    Yes

Q.    What are those reasons?

A.    I don't have anyone in China, my parents are now in Canada

Q.    Are you willing to depart Australia?

A.    No because when I go back I don't have nothing there.

14    The appellant lodged the protection visa application after that interview. In his written application and statement (dated 30 May 2014), the appellant claimed that in May 2010, while he was studying away from home, his father sheltered his father's cousin in the family home. This cousin was a practitioner of Falun Gong who was wanted by the police for engaging in Falun Gong related activities and for trying to sabotage the legality of the Communist Party.

15    The appellant stated that his father's cousin was dragged away by police, and that the police began looking for his father for knowingly sheltering a wanted Falun Gong practitioner. The next day, the appellant received a phone call from police asking after his father, and police raided his home looking for his father.

16    The appellant's father fled to Canada and obtained a protection visa there. The appellant, his mother and his brother remained in China at that time.

17    According to the appellant, after May 2010 the police attended his family home many times. In April 2011 the appellant's mother told officials that the father was living in Canada but this made matters worse. The appellant and his mother were interrogated, were threatened with criminal charges if they did not disclose the father's whereabouts and were forced to attend classes on government policy regarding Falun Gong practitioners. They were also questioned by the village secretary and the village government. In January 2012 police again came to the house and questioned the family about his father and told them that if they found that the father had been involved in Falun Gong, they would have every right to confiscate the family home as the family would be deemed as family members of the Falun Gong 'cult'. His mother and the appellant were petrified at the time, as the family was not able to subsist without land, so he thought he should go overseas.

18    The appellant did not want to live 'in the shadow of fear'. He obtained a student visa and fled to Australia, and immediately sought help to obtain a protection visa. However, he was told that the chances of obtaining a protection visa were slim because his father was the one subject to persecution, not him, and so he did not at that time pursue the application. He was told by others that he should lodge an application himself, but he found it too difficult to do so without any assistance. He later consulted a different legal representative and was told he was eligible to apply under complementary protection provisions.

19    Before the Tribunal the appellant said that the government had taken his house in China after his brother and mother went to Canada and that the government was entitled to do so as no-one was living in it and no one would inherit it. He said that because of this and because he has a rural hukou (a particular kind of domestic passport) and no other skills, he will be unable to find work upon return to China (I note there was no evidence that supported or explained the relevance of the alleged hukou paper).

20    The Tribunal noted the following:

[22]    The applicant stated that his wife had divorced him and the government had taken his house and land. He stated he had no way to survive in China if he went back because he could not work. The Tribunal put to him that he had worked as a gyprocker. He said he could not do that in China because he was a farmer's son and had a rural hukou and had no other skills. He said he could live only in a rural area and had nothing. The Tribunal put to him that he had family back in China. He stated that he was an adult and how could his family help him for the rest of his life. He also stated that his wife and child had left him and his parents were in Canada.

21    Additional matters raised before the Tribunal are addressed below.

The Tribunal's findings

22    The Tribunal found that the appellant was not a reliable witness. It came to this conclusion based on various inconsistencies, dealt with as follows.

23    First, it noted inconsistencies in his claims as to how often authorities attended his family home before and after the father left for Canada. For example, it noted that in the October 2015 interview the appellant stated that after the father left for Canada, the authorities visited daily, then weekly and then on important occasions, and later in that interview he claimed he was investigated every three to five days. At the hearing before the Tribunal he claimed that the authorities came five to six times per year ([44] of Tribunal's reasons).

24    Second, it noted that at the October 2015 interview the appellant first alleged that the authorities found Falun Gong documents that belonged to his cousin. The appellant did not mention this in his written statement. The Tribunal noted that as such documents would be incriminating, it is difficult to understand why their discovery would not have been mentioned earlier ([46] of Tribunal's reasons).

25    Third, the Tribunal noted that when he was questioned by compliance officers in May 2014 after his student visa expired, the appellant's reasons for wishing to stay in Australia were not consistent with his claim to fear persecution because of his and his father's imputed beliefs. It noted that the appellant lodged an application for a protection visa more than 18 months after he arrived in Australia. The Tribunal noted that at the hearing the appellant tried to explain his failure to mention his fear of returning during the May 2014 compliance interview on the basis of his nervousness and fearfulness of the interview situation, but the Tribunal was not convinced by such explanation. It noted that the explanation given at the May 2014 compliance interview appeared to be sincere, reasoned and coherent. It noted the appellant's explanation as to why he did not immediately apply for a protection visa: he claimed he spoke to an agent one day after he arrived; he relied on information from others in China about being able to work on a student visa without studying; he was given misinformation from a migration agent about the refugee definition; a second migration agent wanted to charge him $4,000; his English was poor and he had no money. The Tribunal considered such explanations to be a 'carefully crafted attempt to paper over' the appellant's delay in lodging an application. It did not consider the appellant would be so naïve as to rely on information from China that he could work on a student visa. It found that the appellant was willing to adjust and adapt his evidence regardless of the truth ([48] of Tribunal's reasons).

26    The Tribunal expressed its conclusion on reliability as follows:

[49]    For all of the above reasons cumulatively, the Tribunal finds the applicant is not a reliable witness. In light of its findings that he was not a reliable witness, the Tribunal does not accept that his evidence about the key aspects of his claims are based on his personal or actual experiences and considers it was fabricated to create a claim to be owed protection. This means that the Tribunal does not accept the applicant's claims. For these reasons, on the evidence before it, the Tribunal does not accept that his father's cousin ([redacted]) did stay at his home or that he was wanted by police due to the fact he was a Falungong practitioner who engaged in many Falungong related activities such as gathering and handing out flyers to promote Falungong practice. The Tribunal does not accept that [the cousin] was detained by police at the applicant's place, or that he was sentenced to 6 years detention, or that his father went into hiding. Neither does the Tribunal accept that the applicant received a call from the authorities saying that they suspected his father of sheltering a Falungong practitioner or that they warned him to tell them of his whereabouts or that they repeatedly returned to the applicant's home including on 22 January 2012 or that he and his mother had to attend study classes or that the authorities have threatened that they would take his home. Neither does it accept that the applicant's brother could not find a job after he graduated from a culinary college because he was unable to get a local police office check. Given the applicant's propensity to fabricate his claims, neither does the Tribunal accept that the applicant is now telling the Tribunal the truth when he states that his wife wants to divorce him and that the authorities have taken his house and land and that because he has a rural hukou, he will be unable to survive in China because he will be unable to relocate or work. Neither does the Tribunal accept that the applicant will be investigated merely because he has been in Australia for a long time.

[50]    Because the Tribunal accepts that the applicant's father has been recognised as a Convention refugee by the Canadian authorities, the Tribunal has considered if it is wrong and his father's cousin ([redacted]) did stay at his home and was wanted by police due to the fact he was a Falungong practitioner who engaged in many Falungong related activities such as gathering and handing out flyers to promote Falungong practice and that [father's cousin] was detained by police at the applicant's place, and he was sentenced to 6 years detention, and that his father went into hiding and went to Canada. Even if the Tribunal accepts this, the applicant has never stated that his father is a Falungong practitioner. Neither does the Tribunal accept that any of the personal experiences that the applicant said happened to him in fact occurred, that is the Tribunal does not accept that the applicant received a call from the authorities saying that they suspected his father of sheltering a Falungong practitioner or that they warned him to tell them of his whereabouts or that they repeatedly returned to the applicant's home including on 22 January 2012 or that he and his mother had to attend study classes or that the authorities have threatened that they would take his home. For these reasons and on the evidence and information before it, the Tribunal does not accept there is a real chance the applicant would suffer serious harm on return for reasons of his having been linked to or of his having had an imputed connection to his father's case or for any imputed Falungong or anti-government opinion of for any other related or other reason. In reaching this conclusion, the Tribunal has considered the applicant's father's claim that his two children were kicked out of school because of his activities however this is not consistent with the applicant's statement that his brother graduated from schooling or the applicant's protection visa application that states he himself finished schooling in 2007.

27    Consequently, the Tribunal did not accept that there was real chance that the appellant would suffer serious harm for a Refugees Convention reason if he returned to China. It did not accept he held a well-founded fear of persecution. Therefore, it did not accept that he met the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Cth) (Act).

28    Further, the Tribunal considered that he did not meet the criteria for a grant of a protection visa on the basis of the criterion for complementary protection under s 36(2)(aa) of the Act. It did not consider that there were substantial grounds for believing that as a result of being removed from Australia there was a real risk he would suffer significant harm. It had earlier noted the definition of 'significant harm' is defined exhaustively in s 5(1) of the Act. The Tribunal repeated that it found that the appellant was not credible and that it did not accept that any of the claimed events involving him occurred. Accordingly, it did not accept that there was a real risk that the appellant has been linked to or has been imputed with an actual or imputed connection to his father's case or for any imputed Falun Gong or antigovernment opinion or for any other reason.

Before the primary judge

29    At the hearing of his application before the primary judge, the appellant was not represented and he did not make submissions in support of his case.

30    However, the appellant filed detailed grounds and an affidavit which in effect comprised submissions in support of his application. In the affidavit, the appellant contended that the Tribunal failed to take into account the Post-hearing Submission. The appellant said that in particular the Tribunal failed to take into account information relevant to an apparent conflict in evidence as to how often alleged authorities had come to his house, and information relevant to an apparent conflict as to when he first said that Falun Gong materials were found at his house. The appellant alleged the Tribunal failed to take that information into account when considering the credibility of his evidence and such failure comprised jurisdictional error (ground 1).

31    The appellant also contended that significant economic hardship that threatened his capacity to subsist or earn a livelihood of any kind may comprise significant harm. He stated that the Tribunal rejected his evidence that the farming land had been taken away because it found he had a propensity to fabricate his claims. The appellant said that the Tribunal failed to take into account the information to the effect that his remaining immediate family members (that is, his mother and brother) have been granted permanent residency in Canada, that he has been absent from China since 2012 and therefore because no family members remain in China, the local authority has taken the family's farming land. The appellant contended that the absence of evaluation of the evidence indicated a constructive failure to exercise jurisdiction and so jurisdictional error (ground 2).

32    After briefly summarising the appellant's protection claims, the primary judge referred to the Tribunal's determination that the appellant was not a reliable witness, stating as follows:

[7]    The Tribunal raised with the applicant that he only applied for a protection visa after he was found by compliance and at the compliance interview the applicant did not say that he would be investigated because of his father or that he feared returning to China. The Tribunal raised with the applicant that he had informed the compliance officers that he wanted to migrate to Australia and that he initially wanted to study but did not have the money.

[8]    The Tribunal identified the relevant law and accepted the applicant's father had been recognised by Canadian authorities as a refugee. The Tribunal however, had concerns as to the veracity of the applicant's evidence. The Tribunal identified the applicant's evidence changing over time. The Tribunal also took into account the answers given by the applicant at the compliance interview and the delay in the applicant's application for a protection visa.

33    The primary judge then set out the content of the appellant's affidavit.

34    The primary judge then gave reasons for dismissing ground 1 as follows:

[16]    In relation to ground 1, the Tribunal did give reasons addressing the applicant's claim as to the discovery of Falun Gong materials at his home. The Tribunal identified that this was a claim that had not been raised in his initial claims. The Tribunal gave detailed and logical reasons in support of the adverse credibility findings and that included the information that the applicant had provided at the compliance interview, as well as the delay in the applicant's application for protection, and on these grounds alone the adverse credibility findings cannot be said to be illogical, irrational or unreasonable.

[17]    The Tribunal addressed the applicant's claims and made adverse findings that were open to the Tribunal for the reasons given by the Tribunal as summarised above. The adverse findings cannot be said to lack an evident and intelligible justification. The applicant's disagreement with the adverse findings does not identify any relevant legal error.

[18]    It is apparent from the Tribunal's reasons that the Tribunal took into account the applicant's response to the s 424A letter, and contrary to the applicant's assertion, the Tribunal gave detailed reasons in support of the adverse credibility findings, as summarised above. There is no substance in the contention that the Tribunal did not comply with its statutory obligations in the conduct of the review. Nor is there any substance in the assertion that the Tribunal failed to undertake the review required under s 414 of the Act.

[19]    The Tribunal's decision sets out, at paragraph 24, the post-hearing submission including considering the applicant's explanation as to why he had not mentioned the Falun Gong material found in his home. The submission did not explain the inconsistency but rather contended that the Tribunal ought not to have been concerned about the inconsistency. The inconsistency was not immaterial or trivial. The Tribunal's adverse finding in relation to the applicant's claims including rejecting the applicant's claims in respect of the Falun Gong material was clearly open. No jurisdictional error as alleged in ground 1 is made out.

35    The primary judge then found that ground 2 was not made out, stating as follows:

[20]    In relation to ground 2, the Tribunal clearly identified the applicant's claimed fear of ability to subsist but having found the applicant was not a reliable witness, did not accept the applicant's claim that the farming land had been taken away. The Tribunal's reasons reflect dispositive findings in respect of the whole of the applicant's claims. It was not necessary for the Tribunal to refer to the applicant's mother and brother having obtained residency in Canada. It was not necessary for the Tribunal to make any such finding and nor was it necessary to do so in relation to the applicant's ability to subsist in China. The Tribunal did not accept the applicant would be unable to work or that his wife, who resides in China, had divorced him.

[21]    Ground 2, in substance, reflects a disagreement with the adverse findings by the Tribunal that were open to the Tribunal and cannot be said to lack an evident and intelligible justification. There was no failure by the Tribunal to properly conduct the review as alleged in ground 2. No jurisdictional error in ground 2 is made out.

36    Accordingly, the primary judge dismissed the appellant's application.

Grounds of appeal before this Court

37    The appellant relies on two grounds of appeal. These are as follows:

(1)    The primary judge failed to adequately consider the grounds of review advanced by the appellant. This is demonstrated by the brevity of the reasons for judgment and the fact that the reasons for judgment were delivered ex tempore. Reliance is placed on DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [48] and COZ16 v Minister for Immigration and Border Protection [2018] FCA 46.

(2)    The Tribunal did not disclose to the appellant that there was an invalid certificate issued under s 438 of the Act.

Ground 1

38    The appellant represented himself at the hearing before me with the assistance of an interpreter. In his written grounds he said that the primary judge did not show any careful consideration of the grounds he presented. At the hearing, the appellant said that the primary judge failed to consider that if he were returned to China, he would not be able to survive because he had no land. He referred to the fact his father was punished for protecting Falun Gong practitioners in the past.

39    The appellant's complaints about the Tribunal's reasons are best described as first, a complaint that he was disbelieved as to personal experiences that affected him and were relevant to his claim that he feared persecution on the basis of imputed connections to Falun Gong and that in reaching that finding the Tribunal failed to refer to the Post-hearing Submission; and second, a complaint that his 'subsistence' argument was not properly considered because he was disbelieved and evidence was not taken into account.

40    The Minister submitted that whilst the reasons given by the primary judge were brief, they were adequate in that they explained the basis of the primary judge's reasoning in rejecting the appellant's contentions. The Minister further submitted that the grounds below could not have succeeded and the reasons for judgment do not overlook, fail to address, or indicate any misapprehension in respect of any argument advanced to the Court by the appellant (referring to DAO16 at [48]).

41    Counsel for the Minister also submitted before me that whilst the primary judge did not refer to the mother and brother moving to Canada and the primary judge did not engage with the appellant's claim that the farming land has been taken away, nothing turns on those claims because even if it were the case that the land was taken away, that fact does not lead to a conclusion that the appellant would be unable to subsist. The Minister referred to the Tribunal's rejection of the appellant's claim that he would be unable to work and the Tribunal's reference to the appellant having other family members in China.

42    There is no doubt that the primary judge's reasons are brief. The adequacy of reasons of a Federal Circuit Court judge in the context of such migration review applications has been considered in a number of cases.

43    In some of those cases, although reasons were considered inadequate, the appeal court has in effect been obliged to consider the original review grounds and remittal was considered futile, due to insufficient prospects of success: for example, CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [93]-[94]; Yaacoub v Minister for Immigration and Border Protection [2018] FCAFC 39 at [31]-[33].

44    In other cases, the reasons, despite their brevity, were considered sufficient: for example, DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 at [33]; DTG16 v Minister for Immigration and Border Protection [2018] FCA 143 at [14]-[22]; DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 at [73]-[78]; EGN17 v Minister for Immigration and Border Protection [2018] FCA 1810 at [26].

45    In other cases, reasoning has been held to be inadequate and the matter remitted to the Federal Circuit Court, on the basis for example that it is the obligation of the Federal Circuit Court to explain why an application for judicial review is dismissed, and that obligation is not to be impermissibly shifted to this Court: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14]; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [48]; AXE16 v Minister for Immigration and Border Protection [2018] FCA 646 at [24]-[30]; BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 at [74]-[78]; COZ16 at [47]-[48], [61]; DAO16 at [46]-[49] (remitted to Tribunal).

46    The authorities are to be viewed against the backdrop that it is established that the requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ).

47    As explained in DAO16, it is necessary for the primary judge's decision to reveal the basis upon which they reached their decision. Appealable error will be established where the primary judge addresses the grounds of judicial review by stating the conclusion for rejecting each ground at such a high level of generality that the basis for the conclusion is not exposed, or the reasons do not disclose that the primary judge considered fundamental aspects of the appellant's case. To find, for example, that 'adverse findings were open and cannot be said to lack an evident and intelligible justification' is merely to assert a conclusion: at [48].

48    A primary judge may fall into error where they fail to conduct an analysis or evaluation of the primary decision-maker's findings and merely accept and act upon the primary decision-maker's assertions: COZ16 at [48].

49    At the same time, mere brevity of reasons or the fact that they are delivered ex tempore does not of itself indicate a failure to give adequate reasons: COZ16 at [33]-[36]; EGN17 at [26].

50    In this case, ground 1 of the appeal is put generally but requires a consideration of the treatment of the primary judge of both:

(1)    the adverse credibility finding insofar as it relates to the claims of fear on the basis of links to Falun Gong; and

(2)    the reliance on such adverse credibility finding to dismiss the appellant's claims insofar as his claimed fear based on future subsistence is concerned.

51    As to the adverse credibility findings relating to the appellant's own links to Falun Gong, the primary judge's reasons are at [16]-[19] of his reasons, as included above. At [16], the primary judge did in fact summarise and consider, albeit extremely briefly, matters to which the Tribunal had regard in making the credibility findings. So much can be seen from the reference to the Tribunal having identified that the claim about Falun Gong documents had not been made in the appellant's initial protection claim, the nature of the information given at the compliance interview and the delay in bringing a protection application. The primary judge at [7] and [8] of his reasons also referred to the Tribunal's reliance upon the conflicting evidence at the compliance interview and the delay in applying for the protection visa. Whilst it is regrettable that the reference at [17] to reasons 'as summarised above' does not disclose more clearly the relevant summary, it does seem that the Tribunal's relevant reasons are identified and considered by the primary judge at [16], when read with [7] and [8]. The conclusion at [17] that 'the adverse findings cannot be said to lack an evident and intelligible justification', in contrast to the position in other cases, is therefore not made in isolation but after several matters have been identified at [16].

52    At [18] the primary judge stated that it is apparent from the Tribunal's reasons that it took into account the Post-hearing Submission. The primary judge did not state how it is 'apparent'. At [19] the primary judge stated that:

The Tribunal's decision sets out, at paragraph 24, the post-hearing submission including considering the appellant's explanation as to why he had not mentioned the Falun Gong material … .

53    The paragraph of the Tribunal's reasons identified by the primary judge ([24] of Tribunal's reasons) sets out verbatim the Post-hearing Submission. That paragraph does not include any 'consideration' of the matters raised.

54    However, having reviewed the Tribunal's reasons as a whole, it can be inferred safely that the Tribunal in fact took the Post-hearing Submission into account. This can be gleaned from the references in the Tribunal's reasons at [45], [48] and [50] to information that was provided only by way of the Post-hearing Submission: that is, that the copy of the father's PIF referred to his evidence about authorities visiting the family home after he departed and such evidence was hearsay; that the appellant was virtually petrified at the compliance interview and the scene triggered a flashback of what happened to him in China; that the PIF referred to the children being kicked out of school in contrast to the appellant's own evidence that he completed school. I note that it is also established that a delay in applying for a protection visa is a matter to which the Tribunal may properly have regard in support of an adverse credibility finding: Selvadurai v Minister for Immigration & Ethnic Affairs [1994] FCA 301 at [11].

55    Additionally, the appellant specifically contended before the primary judge that the Tribunal failed to take into account his explanation in the Post-hearing Submission about his failure to raise at an early stage the alleged discovery of the Falun Gong materials in his home. The concern expressed by the Tribunal in its letter of 21 February 2018 inviting comment was that the appellant had failed to refer to the Falun Gong materials in his written statement (of 30 May 2014) and had first referred to them during his interview with the delegate on 23 October 2015. In response, the appellant's agent wrote:

When it comes to the third concern raised by the Presiding Member, we noted that the review applicant did raise this in the interview with the delegate of the minister, which was before the primary decision made on 23rd of October, 2015. In page 7 of the decision record, [the decision maker] states:

"The applicant claims to fear investigation and harassment based on his being accused of sheltering a Falun Gong practitioner during a time when no other family members were at home…. further at the applicant stated that antigovernment documents were found at his home address relating to "propagating Falun Gong' and "Nine Chapters commenting on the Communist Party" He said these documents had belonged to his father's cousin who was arrested and claimed his father had warned him about the antigovernment documents founding the family home by the authorities.

Regardless of whether the review applicant put it in his written statements of claims or not, [the appellant] raised it to the then DIBP decision maker who subsequently, accepted that 'antigovernment documents claimed to have been founding the family home could be perceived by the Chinese Authorities as an implied expression of political opinion". It is not a new claim, and [the appellant] apparently took the opportunity in the previous interview and raised the decision maker. Therefore, we submit the Tribunal should not draw an inference unfavourable to the credibility of his claims.

56    The primary judge characterised the deficiency with this submission at [19] as follows:

The submission did not explain the inconsistency but rather contended that the Tribunal ought not to have been concerned about the inconsistency.

57    The Post-hearing Submission did not show that the documents were referred to prior to the interview with the delegate, nor did it provide a reason why the appellant delayed in disclosing the existence of the documents until that interview. Instead, it invited the Tribunal not to draw an adverse inference, despite the delay, apparently on the basis that the delegate accepted the claim. It was open for the Tribunal to draw an adverse inference due to the unexpected delay in disclosure about the documents where it had invited the appellant to explain the delay, and the appellant had not done so.

58    In any event, the delegate's reasons do not expose that she accepted that the Falun Gong documents were found in the appellant's home. Rather, her reasons demonstrate that she had regard to the appellant's claim about those documents, but not that she accepted that claim as true. In any event, the Tribunal was not obliged to follow the delegate's decision.

59    In conclusion, there are certain deficiencies in the reasons of the primary judge as identified in [51]-[53] of these reasons with respect to his consideration of the credibility findings that are based on the matters referred to by the Tribunal and summarised at [23]-[25] of these reasons. It would have been preferable for the primary judge to address the appellant's arguments and exposed his reasoning in a more fulsome manner so that the appellant could clearly see that the arguments had been addressed and the basis upon which they were rejected. But it cannot be said that the reasons were so inadequate as to justify a finding that the primary judge failed to exercise jurisdiction. It would be futile to pursue further the contention that the Tribunal failed to have regard to or consider the Post-hearing Submission when it is apparent that it did so.

60    The two paragraphs ([20] and [21]) of the primary judge's reasons devoted to the appellant's claim that his land had been taken and he would have no way to subsist if he were returned to China are more problematic.

61    The Tribunal's wholesale rejection of the appellant's evidence as to personal experiences that he said had happened to him undermined his claimed Falun Gong link. That rejection was based upon the Tribunal's view that the appellant had in fact fabricated those particular experiences. Because it formed that view of the appellant as a witness, and so found that he had a 'propensity to fabricate his claims', the Tribunal did not accept as truthful his evidence that the authorities had taken his land and he would be unable to work in China. In coming to that conclusion, it did not refer to evidence that might, at one level, be considered consistent with the appellant's claim, namely the evidence that his mother and brother have also moved to Canada and been granted permanent residency, leaving the land apparently unattended. The appellant contends that the primary judge failed to deal with this issue (the appellant contended it is 'self-evident' that the land had been taken, but I note that there was no evidence about the status of the land apart from the appellant's own testimony).

62    The Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 addressed in detail the principles that apply when credit findings are challenged. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credit are not open on a number of grounds, such as the failure to afford procedural fairness, reaching a finding without any logical or probative basis or unreasonableness: see CQG15 at [36]-[44], noting the reference to SZSHV v Minister for Immigration and Border Protection [2014] FCA 253.

63    In SZSHV, Flick J held that adverse findings as to credit by the Tribunal do not shield its decision-making process from scrutiny. His Honour said as follows:

[31]    In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:

[78]    It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal's rejection of the entirety of an applicant's evidence and the entirety of the applicant's claim.

The Tribunal in that case had found the claimant had been "untruthful", including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant's account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. The Minister appealed unsuccessfully. Robertson J relevantly concluded:

[119]    The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal's rejection of the applicant's claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal's approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.

[120]    The court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.

[121]    To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant's claims; (2013) 212 FCR 99 at 132.

See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895 at [24] per Bromberg J. Such findings, like all findings, must be rationally made and based upon facts having logical and probative weight. Prior to the decision in Minister for Immigration and Citizenship v SZRKT, supra, in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], (2009) 181 FCR 113 at 126, Logan J had also observed that "the adjectives 'ignorant', 'arbitrary' and 'perverse' aptly apply to a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document". Similarly, an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias: e.g., SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

64    The primary judge did not address whether the Tribunal's finding that certain evidence was fabricated properly justified the rejection of the evidence about the land being taken and that the appellant's ability to work depended on having such land. The rejection of that evidence was on the basis of a 'propensity to fabricate'. The primary judge's approach in the two relevant paragraphs of his reasons is not the nuanced approach referred to in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [78], as cited in the above extract from SZSHV. It does not deal with questions of credit by considering whether the Tribunal's disbelief as to the Falun Gong related links meant that it was appropriate for the Tribunal to also disbelieve the appellant generally, and so disbelieve his claim that the land was subsequently taken from the family.

65    The Tribunal did not address the fact that the brother and mother had departed China and were now permanent residents of Canada. Such evidence may or may not have influenced a credibility finding on that particular aspect of the appellant's evidence, because it was at least relevant to the appellant's claim that he was told by authorities that the land would be taken if the family were no longer living there. In my view, the primary judge should have addressed that matter in his reasons and it follows that I do not consider he properly considered the submission made by the appellant. It was not enough to dismiss any requirement on the part of the Tribunal to take such evidence into account evidence solely on the basis that the appellant was generally disbelieved. Because of the primary judge's abridged approach to the appellant's submission about the land, any relevance of the loss of the land to his protection visa application was not properly addressed for the benefit of the appellant.

66    However, in the circumstances, the appellant has not suffered any practical injustice from the failure of the primary judge to properly address that claim: compare Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 14 [37]. For the following reasons, a dismissal of the appellant's claim was inevitable and the Tribunal made no jurisdictional error in the way in which it disposed of it.

67    Not that it is necessary to review the delegate's reasons for this appeal, I note that in her October 2015 reasons, the delegate of the Minister had expressly noted that a fear of having no land to farm does not meet the definition of harm under s 36(2A) of the Act.

68    Although the Tribunal did not expressly note that aspect, it was clearly cognisant of the relevant definition. It set out in its reasons the criteria for a protection visa, including the refugee criterion (s 36(2)(a) of the Act) and the complementary protection criterion (s 36(2)(aa) of the Act). It noted, correctly, that to justify complementary protection, the Minister must have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. The Tribunal noted that 'significant harm' is defined exhaustively in s 36(2A) and by reference to s 5(1). So much was also confirmed in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 at [24]. Section 36(2A) provides as follows:

A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

69    Had the primary judge addressed the question raised by the appellant as to the land fully, then there is little doubt that he would have found that there was no jurisdictional error on the part of the Tribunal in dismissing the appellant's claims. A dismissal was inevitable on the basis that there was no evidence that the claims based on alleged lack of land and an inability to work would comprise a recognised basis for complementary protection under s 36(2)(aa) of the Act (as alleged by the appellant).

70    I have accepted there is no appealable error with respect to the first aspect of ground 1 of this appeal, that is, the primary judge's consideration of the Tribunal's rejection of the appellant's claim to fear persecution based on political opinion or links to Falun Gong.

71    I accept that the primary judge's reasons as to the second aspect of ground 1 of this appeal are deficient. However, it is futile to remit this matter for further consideration by the Federal Circuit Court when the information that the appellant relies upon as founding his protection claim is before this Court and where, because of the definition of s 36(2A), there is no risk of merits review. Even if the Tribunal had accepted that the land formerly farmed by the appellant's family had been seized or was no longer accessible to the appellant, nothing in the appellant's evidence could properly be said to approach or meet the s 36(2A) definition of significant harm. Further, the appellant had found work in Australia. The Tribunal's rejection of his claim that he would be unable to work at all if he were returned to China had a basis in the appellant's own evidence. Therefore, in my view the Tribunal's ultimate decision was correct and no material error is disclosed. I accept the Minister's submission in this regard (see [41] of these reasons).

72    It follows that ground 1 of the appeal is dismissed.

Ground 2

73    This ground was not pleaded in the Court below, and consequently leave is required to rely on it. The Minister opposed leave on the basis that the complaint is misconceived, as there was no evidence before the Court to support the assertion that the appellant's Department file contained a certificate issued under s 438 of the Act. The appellant was unable to explain why the ground appeared in his notice of appeal, except to say that he received some assistance from a migration agent. He was unable to explain how it could be relied upon. On my review of all the papers in the Court book, the Minister's position is correct and must be accepted. Accordingly, ground 2 must be dismissed.

Conclusion

74    It follows that the appeal is dismissed.

Associate:

Dated:    2 May 2019