FEDERAL COURT OF AUSTRALIA
ABT16 v Minister for Home Affairs [2019] FCA 836
ORDERS
First Appellant ABU16 Second Appellant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for an extension of time within which to appeal is treated as an appeal.
2. Leave is granted to file the amended notice of appeal and to raise the new issues.
3. The appeal is dismissed.
4. The appellants are to pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The first and second appellants are mother and son respectively and are citizens of the People’s Republic of China. They arrived in Australia in 2007 on student visas. On 8 August 2008, the mother lodged a protection visa application. That application was refused by a delegate of the Minister and affirmed on review by the (then) Refugee Review Tribunal (the Tribunal) on 28 February 2009.
2 The mother lodged a second protection visa application on 19 March 2014 which included her son as a member of her family unit. That application was validly lodged as a consequence of the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235. It followed from that decision that the mother was not prevented by s 48A of the Migration Act 1958 (Cth) (the Act) from lodging a protection visa application on the ground that Australia owes complementary protection obligations to her thereby satisfying the complementary protection criterion in s 36(2)(aa) of the Act, even though she had been unsuccessful in her claim for protection as a refugee under s 36(2)(a). Under s 36(2)(aa), the Tribunal must be satisfied that Australia owes complementary protection obligations to the non-citizen because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being returned to her or his country of origin, there is a real risk that she or he will suffer “significant harm”. “Significant harm” is defined in s 36(2A) to include arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment of punishment.
3 In essence, the mother claimed that she would face harm in China relevantly from creditors and debt collectors who she said would endanger her life in relation to an investment loan which she could not pay back for a development project which did not exist or had collapsed. On 17 July 2014 a delegate of the Minister refused to grant the application for protection visas. That decision was affirmed by the Tribunal on 18 December 2015. This is an appeal from a decision of the Federal Circuit Court (FCC) given on 11 May 2018 refusing an application for judicial review of the Tribunal’s decision on the second application for protection visas.
4 This proceeding was initially instituted as an application for an extension of time within which to appeal the FCC decision pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth) (FCR). However, as the Minister conceded, there was no need for the appellants to seek an extension of time because the application, together with the draft notice of appeal, was filed within time. The parties therefore proceeded on the basis that a competent notice of appeal had been filed.
5 Following concerns about the Tribunal’s decision which emerged in arguendo when the appeal was first set down for hearing, the hearing was adjourned in order that a referral could be made pursuant to FCR rule 4.12 referring the appellants to a lawyer for legal assistance. That referral was accepted by Mr Gormly of counsel and the Court received an amended notice of appeal on 23 April 2019. The Court expresses its gratitude to Mr Gormly for accepting the referral.
6 For the reasons set out below, leave is granted to amend the notice of appeal and to raise the new grounds of appeal but the appeal must be dismissed with costs.
2.1 The protection visa application and delegate’s decision
7 In her protection visa application, the mother claimed to fear harm from “[t]he authorities, the creditors and the debt collectors” (AB 20). In response to the following question, “Why do you think this will happen to you if you go back”, the mother relevantly claimed that:
The perverted government officials colluded with the property developers having deceived our investment money. The property developer needed money for the development project by way of raising money in our area. I thought it would be a good investment opportunities and then I have borrowed money from my friends and villagers. In return, I have to pay higher interest than the interest of loan in the bank. But, the project did not exist or collapsed, I have got nothing back from the investment. I thus was not able to return the money I have borrowed.
If I return to China, the creditors and the debt collectors will after me for their money. It will endanger the safety of my life.
(without alteration)
8 The mother raised additional claims in her interview before the delegate as to the harm feared by her if she were returned to China. Relevantly, as summarised by the delegate, the mother claimed that:
… she had borrowed $35,000 from two of her friends which she invested in a real estate project which eventually fell through. She was unable to return the money which she borrowed on high interest rates. She further explained the friends from whom she borrowed the money threatened that they would take action against her if she did not return the money. After she explained to them that she was unable to return the money they asked her to go to the police station with them as they wanted the Police to arrest her. She continued saying that the police actually came to her residence and arrested her and put her to jail for one week until a friend of hers came and bailed her out from custody. …
The applicant went on saying that due to her not being able to repay her loan the Government confiscated one acre of her land, which could be used for housing development. However she was not given any money for compensation, neither did the Government give any money to her lenders from whom she had borrowed the money.
(Delegate’s reasons at AB 59)
9 Based upon adverse credibility findings, the delegate did not accept that the mother was detained due to her being in debt, or that she has a genuine fear of returning to China and would face charges relevantly by reason of her debts (AB 60).
10 In its reasons, the Tribunal described the mother’s evidence about the loan to invest in the real estate development project and an earlier loan at the Tribunal hearing relevantly as follows:
g. The [mother] left China because many things happened. She was sued. She fears she will be arrested if she returns to China because she had such a big debt and the government took away her land.
h. Her land was taken [in] 2007 because she borrowed money from her friend. The government and her friend took the land. The [mother] had been farming the land. She could have built a property on the land or had a shop on it. The Government told the [mother] that they took the land because she owed money to two friends. The government build a property on her land. This was while the [mother] was still in China.
i. The two friends the [mother] owed money to … lived in the [mother’s] town. … She borrowed [several hundred thousand] yuan from them for one year in 2006. She had to repay them interest of 50,000 [yuan]. The [mother] used the money she borrowed to invest in real estate.
j. Her two friends were doing the real estate so the [mother] borrowed money from them. They said she could have a bonus from them. Her two friends gave her the money and she then gave it to them. She gave them the money and they lost it. They lied to her. They told her they can lend her some money and she could make money but they didn’t make money and they didn’t give her one cent. She doesn’t know what happened because she always stayed at home and didn’t know what happened outside.
k. The [mother] owes money to her sisters and friends and neighbours. Her husband was a farmer and didn’t make much money. At an earlier stage the [mother] ran a small business, a grocery shop, but she lost money. She borrowed money … from her three sisters [and from friends]. … Her elder brother asked his wife to borrow money from her father to lend to the [mother]. She ran the grocery shop for one year. It made a loss so she sold the business. With the money from the sale of the business her husband started a construction business, but it also suffered a loss. She did not repay the people who lent her money even though they wanted their money back. …
(Tribunal reasons at [20])
11 Based upon the information she presented and confirmed at the hearing, the Tribunal summarised her claims as follows at [25] of its reasons:
• She was unhappy with her neighbours raising the height of their home as it caused some water damage to her home.
• A section of her land was taken by the government to build or widen a road and she was not compensated for the loss of this land.
• She has borrowed money from friends and family from time to time which she has not repaid.
• Two of her close friends provided a sum of money to be invested by them in real estate on the [mother’s] behalf, with the promise she would receive high percentage bonus payments, on the condition that she “repay” the initial sum invested for her plus interest. She did not receive any bonus payments and she could not make any repayments.
• Her farm land has been confiscated by the government because of her debt.
• She will be arrested and imprisoned by the government because she owes money to people.
12 The Tribunal accepted these claims in part, finding that:
(1) the mother had borrowed money from family and friends in China which she has not repaid;
(2) she borrowed money to invest in a property development project but received no return and could not repay the loan;
(3) a section of her land (but not all of it) was taken to build or widen a road; and
(4) she did not receive fair compensation for the acquisition.
(Tribunal reasons at [30] and [31])
13 Nonetheless, the Tribunal did not consider that there was a real risk that the mother would suffer significant harm if returned to China so as to engage Australia’s complementary protection obligations under s 36(2)(aa) of the Act. Leaving aside the manner in which the Tribunal dealt with claims not relevant to this proceeding, the Tribunal’s reasons reduce to the following propositions.
14 First, given inconsistencies in her evidence, the Tribunal did not accept that any action was taken in the past against the mother as she had claimed because of the failed property development project or her failure to pay back the money borrowed for the investment (Tribunal reasons at [26]). Specifically, the Tribunal found that she had failed to mention in her visa application that her land had been confiscated by the government because of her debt and rejected her explanation for the omission that this was because her son wrote her claims for her (ibid). As such, the Tribunal rejected her claim that all of her land was confiscated because of her indebtedness (Tribunal reasons at [31]).
15 Secondly, the Tribunal did not accept that the mother was ever detained in China given that the mother clearly stated at the Tribunal hearing that she had never been detained despite having claimed in her Departmental interview that she was detained for a week (Tribunal reasons at [27] and [31]).
16 Thirdly, the Tribunal found that inconsistencies in the mother’s evidence about how much her husband knew of her involvement in the property development project and her debt, together with inconsistencies between the evidence of the mother and the son about the father, further undermined the mother’s credibility. As a result the Tribunal did not accept that the father has had problems with the authorities in China because of the mother’s debts to others (Tribunal reasons at [28]).
17 The critical passage in the Tribunal’s reasons for present purposes is as follows:
32. The Tribunal accepts that if the [mother] returns to China her creditors may still expect repayment of the moneys she owes to them. The Tribunal does not consider that there is any risk the [mother] would be subjected to significant harm in China because of her outstanding debts. On the basis of the accepted evidence she remained for several years in China owing money to friends and family without any action taken against her apart from repeated requests for repayment. While her creditors may take legal action against her there is no evidence before the Tribunal that this could result in her arrest or imprisonment. On the evidence before it the Tribunal does not accept there is a risk the [mother] will be arrested and imprisoned in China because she owes money to people.
33. There is no accepted evidence or indication of any risk the [mother] would be arbitrarily killed, or be subjected to the death penalty, or be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment because she has outstanding debts in China, including those arising out of the property development project.
18 Fourthly, the Tribunal considered that while it was unfair that the mother did not receive compensation for the appropriation of her land by the government, “there is no indication of any subsequent harm to the [mother] because of this incident. The [mother] remained in China after it occurred, complained about it, her complaints were ignored, but she suffered no further harm” (Tribunal reasons at [34]). Nor did the Tribunal find that there was any basis for her fear of arrest and imprisonment in view of her past experiences if she returns to China (ibid). The Tribunal further found that it “does not accept the [mother] would continue to complain about the confiscation of a section or [sic] her land given it has been many years since it occurred as well as her knowledge of the futility of such complaints” (ibid). Accordingly the Tribunal was not satisfied that there was a real risk of significant harm to the mother because of or arising out of the past confiscation of a section of her land (ibid).
2.3 The decision of the Federal Circuit Court
19 Before the primary judge, the appellants (who were unrepresented) challenged the decision on various grounds including that the Tribunal failed to consider their evidence and claims and otherwise taking issue with the merits of the Tribunal’s decision. These grounds were rejected by the primary judge who found that the Tribunal had considered the appellants’ claims and evidence, and that the grounds invited the Court to revisit the merits of the Tribunal’s decision which was beyond the permissible role of the Court on judicial review. It is unnecessary to consider the FCC decision in detail as none of the grounds before the primary judge were ultimately pressed on the appeal.
3. THE APPLICATION FOR LEAVE TO AMEND THE NOTICE OF APPEAL AND TO RAISE THE NEW GROUNDS
20 The two grounds of appeal raised by the amended notice of appeal are as follows:
1. The Tribunal constructively failed to exercise its jurisdiction under s 414 of the Migration Act 1958 because it failed to address component integers of a claim made by the first appellant.
Particulars
a. The first appellant claimed to fear harm that on return to China her life would be in danger from creditors and debt collectors for non-payment of monies the first appellant had borrowed from friends and villagers before she left China for Australia in 2007.
b. Component integers of this claim were that the first appellant’s fears of harm were related to the length of the loans and the accrued high interest on the loans from the time the first appellant fled China in December 2007 to the time of the Tribunal proceedings which ended in December 2015.
c. It was a proof of the Tribunal’s failure to consider these integers that the Tribunal rejected the first appellant’s claim to fear harm on the basis that the only action taken against her in the time she remained in China for the unpaid loans was repeated requests for repayment.
2. Even in the event the Court does not accept Ground 1, the Tribunal’s reasoning that the first appellant did not face a risk of significant harm for her outstanding debts upon return on the basis that the only action taken against her for the unpaid loans in the time she remained in China was repeated requests for payment, was unreasonable in lacking an evident or intelligible justification.
21 I indicated at the hearing on 7 May 2019 that I would grant leave to amend the notice of appeal and to raise the new grounds for the reasons that the Minister could not point to any prejudice which could not be addressed by an order for costs (cf Minister’s supplementary submissions at [6]) and that, viewed from a reasonably impressionistic level, the proposed grounds of appeal were not without merit. As to the latter, first, the loans in question had been outstanding for a very substantial period of time. Yet this aspect of the mother’s claims was not, at least expressly, considered by the Tribunal. Furthermore the fact that the mother’s sister and friend had not sought to enforce the first set of loans for the mother’s business otherwise than by repeated requests for repayment logically says nothing about how different people who lent the mother money at a high interest rate for an investment in a failed or non-existent real property project would respond to the mother’s failure to repay that loan. In deciding that it was appropriate to grant leave to amend to raise the new grounds, I also took into account the seriousness of the likely consequences to the appellants in the event that they are unsuccessful on the appeal.
4.1 Did the Tribunal fail to consider an essential component of the mother’s claims to fear harm (ground 1)?
22 First, it is well established that if the Tribunal fails to consider an essential component of an applicant’s claims to fear harm, it may fall into jurisdictional error because it will have failed to undertake a review as required by s 414(1) of the Act. As the Full Court recently held in EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214:
36. Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61].
23 Secondly, any such failure must be “material” in the sense that “compliance with the condition could have resulted in the making of a different decision”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [31] (Kiefel CJ, Gageler and Keane JJ); see also at [41] (Nettle J) and [66]-[72] (Edelman J). In the present context, the requirement that the failure to address a contention is “material” means that the contention must be one which if accepted, might have established that the applicant had a well-founded fear of significant harm for the purposes of s 36(2)(aa): see by analogy WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [46] (the Court).
24 Thirdly, in relation to the circumstances in which it will be inferred that the Tribunal has failed to consider an applicant’s claim, the Full Court explained in WAEE that:
47. The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
25 Fourthly, the Full Court has held that the Tribunal is not required to engage in “constructive or creative activity” in order to identify an applicant’s claims: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [58] (the Court).
26 The observations by the Full Court in NABE are given added weight by the subsequent enactment of s 5AAA(2) of the Act. That section was inserted by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) and commenced on 14 April 2015: Migration Amendment (Protection and Other Measures) Act 2015 (Cth) s 2(1) (item 2). As such, it was not in issue that s 5AAA was in force when the Tribunal made its decision on 18 December 2015. Section 5AAA(2) expressly imposes the responsibility upon the protection visa applicant “to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim”. Conversely, the responsibility does not lie upon the Minister (and, therefore, the Tribunal on review) to “specify, or assist in specifying, any particulars of the … claim” or to “establish, or assist in establishing, the claim” (s 5AAA(4)).
4.1.2 Ground 1 must be dismissed
27 Notwithstanding the careful submissions by counsel for the appellants, I agree with the Minister’s contention that neither the accrual of interest nor the effluxion of time or these factors considered together were component integers of the mother’s claims in a jurisdictional sense. This is because the appellants did not submit that these aspects of the mother’s claims had any bearing upon the risk of harm which she allegedly feared and did not lead any evidence to suggest that they had any bearing upon the mother’s alleged fear of harm. Rather, as the Minister submits, the references to interest on the loan can be characterised as “narrative detail put forward to explain the factual context and the reasons why the [mother] was unable to repay her debts” (Minister’s supplementary submissions at [28]), being problems which were, no doubt, compounded by the length of time over which interest had been accruing. Applying s 5AAA(2) and (4), therefore, in the absence of any claim or evidence suggesting that there was a real risk that the length of delay in repayment and/or accumulation of interest might alone or in conjunction with other aspects of the mother’s claims result in the mother suffering significant harm if returned, the Tribunal was not required to consider a hypothesis to that effect.
28 Furthermore, to the extent that the appellants suggest that the Tribunal erred in failing to consider country information which might suggest that these factors could pose a risk of harm, it is clear from s 5AAA of the Act that the Tribunal has no obligation to seek out evidence to support the mother’s claims, even though the Tribunal is entitled to do so.
29 In so finding, I do not accept the Minister’s submission that, in effect, it can be assumed that country information would not been relevant in any event to a consideration of whether the mother faced a risk of harm by reason of the length of delay in repayment and/or the accumulation of interest because the risk of harm depended on the reactions of specific creditors (Minister’s supplementary submissions at [34]). It is not difficult to envisage, for example, that country evidence might exist of the sorts of practices engaged in by money lenders in China in real estate/infrastructure development scams such as that alleged here, and of the extent to which the authorities may protect victims against, or may participate in, any such practices. It was for this reason among others that I found the Tribunal’s decision in this case to be a troubling one, particularly given that essential integers of the mothers’ claims were accepted. However, it is not open to this Court to seek out and consider that sort of factual material. The Court’s jurisdiction is limited to assessing whether a decision made by the Tribunal has been lawfully made under the Act and does not extend to assessing the merits of the Tribunal’s decision: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court agrees with the Tribunal’s decision is not, therefore, a basis on which the Court could interfere with the Tribunal’s decision, even if another decision-maker might have taken a different view of the evidence, undertaken its own inquiries into the country evidence, and reached a different decision.
4.2 Was the Tribunal’s reasoning legally unreasonable (ground 2)?
30 By ground 2, the appellants contend that, in reasoning that the mother did not face a real risk of significant harm if returned because the only action taken against her in the past for unpaid loans were repeated requests for repayment, the Tribunal’s reasoning lacked an evident or intelligible justification.
31 In this regard, it is well established that in assessing whether there is a real chance of persecution or significant harm, past events may assist in assessing what is likely to occur in the future. As the plurality held in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 574, “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence.” Thus, in the context of applying the definition of a refugee in the Refugees Convention, the plurality in Guo held at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. …
32 It follows, as Charlesworth J (with whose reasons Flick and Perry JJ agreed) held in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 (Muggeridge) at [36], that “[t]he adoption of a reasoning process that involved postulation or supposition cannot, in and of itself, therefore constitute jurisdictional error.” However, as her Honour continued:
It is nonetheless necessary that the hypotheses underlying the decision bear some rational connection to the evidentiary materials upon which the Minister is said to have relied.
(ibid)
33 The threshold of legal unreasonableness in turn is “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (SZVFW) at [11] (Kiefel CJ). Thus, it has been said that to establish jurisdictional error based on illogical or irrational findings of fact or reasoning as is alleged here, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 (CQG15) at [60] (the Court)). Thus, the question is not whether the Court would have exercised the discretion to grant the visa in a different way (SZVFW at [86] (Nettle and Gordon JJ) and [18] (Kiefel CJ)). Indeed, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
4.2.2 Ground 2 must be dismissed
34 Applying these principles, first, it follows that the Tribunal did not fall into error at [32] of its reasons (quoted above at [17]) merely insofar as it sought to draw inferences about what may happen in the future if the mother returns to China from what had happened to her in the past. However, the basis on which those inferences are drawn must still be rational and logical, as the Full Court held in Muggeridge.
35 Secondly, one of the reasons given by the Tribunal at [32] for finding that there is no real risk of harm if the mother returns to China due to her outstanding debts was that the mother had remained in China for several years without being subject to any action with respect to the small business loans apart from repeated requests for repayment. Insofar as this reasoning was used to found an inference that a similar approach would be taken by those who had made the real estate project loan in 2006, I consider that it is illogical and irrational. The small business loans were made by the mother’s family, friends and neighbours in or about 1990 to assist the mother when her small business was losing money (Tribunal reasons at [20](k)). However, the real estate project loan was made in 2006 by apparently different friends for one year in order to enable her to invest in their real estate projects with the promise that for a high interest rate, they would give her a bonus of 30-40%. However, while the mother said that her friends made a lot of money, they denied that they had made any money and pursued her for the debt arising from the real estate project loan (Tribunal reasons at [20](n)). As such, the allegation with respect to the real estate project loan was essentially that the mother was the victim of a scam. The response of these creditors was essentially untested because the mother left China in 2007 not long after the real estate project loan fell due. I accept, therefore, the appellants’ submission that it could not rationally be inferred that the response of those allegedly involved in such a scam would be the same as the family and friends who lent the mother money for a perfectly legitimate purpose many years earlier.
36 However, while the Tribunal therefore fell into error, I do not consider that it is jurisdictional in nature. This is for essentially the same reason that ground 1 was dismissed, namely, that despite the onus imposed by s 5AAA upon the appellants, and upon them alone, to identify their claims and provide sufficient evidence in support of them, they failed to do so. The Tribunal’s rejection of the mother’s claim to have been detained in the past for her debts is not challenged. All that remained was therefore the mother’s bare assertion that she feared for her safety if returned because of her indebtedness. No other evidence was led in support of the claim.
37 It follows that it cannot be said that even though the Tribunal’s reasoning was illogical and irrational in the respect alleged, the error was material for the reasons earlier given. The Tribunal’s finding at [32]-[33] that there was no evidence that her indebtedness on either set of loans would result in her arrest and imprisonment, or in her being subjected to significant harm, if she were returned to China discloses no jurisdictional error. As Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (SZUXN) explained (in a passage approved by the Full Court in CQG15 at [60]):
55. … 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 …
(citations omitted)
38 It follows for these reasons that, despite considerable disquiet about the Tribunal’s reasoning process, I do not consider that the appellants have established that the Tribunal’s decision is tainted by an error of a jurisdictional kind. It follows that leave is granted to amend the notice of appeal and to raise the new grounds but the appeal must be dismissed with costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
